THE  LIBRARY 


THE  UNIVERSITY 


OF  CALIFORNIA 


LOS  ANGELES 


GIFT  OF 

Mrs.  Marion  Keiper 


SPEECHES 


LORD  ERSKINE, 


WHILE  AT  THE  BAR. 


EDITED  BT 

JAMES    L.    HIGH, 

COCNSKLOB     AT     LAW. 


VOLUM  E    II. 


CHICAGO: 

CALLAGHAN    &    COMPANY, 
1876. 


Entered  according  to  Act  of  Congress,  in  the  year  1870,  by 

CALLAGHAN  &  COCKCROFT, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1876.  by 

CALLAGHAN  &  COMPANY. 
In  tlie  Office  ol  the  Librarian  of  Congress,  at  Washington.. 


STEREOTYPED  AND  PRINTED 

BY  THE 
CHICAGO  LEGAL  NEWS  Co. 


CONTENTS  OF  VOL.  II. 


Subject  of  the  Trial  of  John  Stockdale  for  a  Libel 6 

The  Attorney-General's  Speech  in  Support  of  the  Prosecution.      .  6 

Mr.  Erskine's  Speech  for  the  Defendant 14 

Reply  of  the  Attorney-General ;.  76 

Lord  Kenyon's  Summing  up  in  this  Cause SO 

Introduction  to  the  Trial  of  Mr.  John  Frost 94 

Speech  of  the  Attorney-General  in  Support  of  the  Prosecution.    .  94 

Evidence  for  the  Crown  in  this  Cause 108 

Mr.  Kn>ki tie's  Speech  for  the  Defendant 125 

Reply  of  the  Attorney-General.  . '  166 

Subject  of  the  Trial  of  James  Perry  and  another 180 

flpt^ah  of  the  Attorney-General  for  the  Crown  in  this  Cause.     .     .  202 

Mr.  Erskine's  Speech  for  the  Defendants 219 

Reply  of  the  Attorney -General *  .     .  251 

Lord  Kenyon's  Charge  on  summing  up 100 

Finding  of  the  Jury , 266 

Subject  of  the  Trial  of  Mr.  Thomas  Walker 267 

Mr.  Law's  Speech  in  Support  of  the  Prosecutiu.i 268 

Mr.  Erskine's  Speech  in  Defence  of  Mr.  Walker 282 

Proceedings  against  Charles  Bembridge  for  a  Misdemeanor.      .     .  821 

Lord  Mansfield's  Charge  to  the  Jury 822 

Mr.  Erskine's  Speech  on  the  Motion  for  a  New  Trial MO 

Statement  of  the  Case  of  John  Vint  and  others MS 

8p«tth  of  the  Attorney-General  for  the  Prosecution 859 

Mr  Erskine's  Speech  for  the  Defendants 862 

Evidence   for  the  Defendants 878 

Reply  of  the  Attorney-General 879 

Lord  Kenyon's  Summing  up 881 

Trial  of  Thomas  Hardy 886 

Mr.  Erskine  •  Application  for  Delay. 898 

Speech  of  Mr.  Erskine  for  the  Defendant .  4O2 

Verdict.  . 6W 


Case  of  the  KING  against  JOHN  STOCKDALE,  tried  in 
the  Court  of  King's  Bench,  before  Lord  Kenyon  and  a 
Special  Jury  at  IfVu/iw  in*ter,  on  the  Ninth  of  December, 
A.  D.  1798,  upon  an  Information  filed  against  him  by  the 
Attorney-  General,  for  a  Libel  on  the  House  of  Commons, 


STATEMENT  OF  THE  CASE. 

THE  trial  of  Mr.  John  Stockdale,  of  Piccadilly,  is  so  im- 
mediately connected  with  the  well-known  impeachment  of 
Warren  Hastings,  Governor-General  of  India,  that  very  little 
preface  is  necessary  for  the  illustration  of  Mr.  Erskiue's  de- 
fence  of  him. 

When  the  Commons  of  Great  Britain  ordered  that  impeach- 
ment, the  articles  were  prepared  by  Burke,  who  had  the  lead 
in  all  the  inquiries  which  led  to  it,  and,  instead  of  being 
drawn  up  in  the  usual  dry  method  of  legal  accusation,  they 
were  expanded  into  great  length,  and  were  characterized  by 
the  fervid  and  affecting  language  which  distinguishes  all  the 
writings  of  that  extraordinary  person.  The  articles  so  pre- 
pared, instead  of  being  confined  to  the  records  of  the  House 
of  Commons,  until  they  were  carried  up  to  the  Lords  for 
trial,  were  printed  and  sold  in  every  shop  in  the  kingdom, 
without  question  or  obstruction  by  the  managers  of  the  im- 
]>eachment  or  the  House  of  Commons,  and  undoubtedly,  from 
the  style  and  manner  of  their  composition,  made  a  very  con- 
siderable impression  against  the  accused. 

To  repel  the  effects  of  the  articles,  thus  prematurely  pub- 
lished, the  Rev.  Mr.  Logan,  one  of  the  ministers  of  Leith,  in 
Scotland,  a  person  eminent  for  learning,  drew  up  a  review  of 
the  articles  of  impeachment,  and  carried  it  to  Mr.  Stockdale, 
nu  eminent  and  respectable  bookseller  in  Piccadilly,  who 


6  SPEECH    OF   THE   ATTOKNEY-GENERAL 

published  it  in  the  usual  course  of  his  business.  Mr.  Logan's 
review  having  an  immediate  and  very  extensive  sale,  was 
complained  of  by  Mr.  Fox,  to  the  House  of  Commons.  Upon 
motion  of  Mr.  Fox,  then  one  of  the  managers  of  the  impeach- 
ment, the  House  unanimously  voted  an  address  to  the  King, 
praying  his  Majesty  to  direct  his  Attorney-General  to  file  an 
information  against  Mr.  Stockdale,  as  the  publisher  of  a  libel 
upon  the  Commons  House  of  Parliament;  and  the  informa- 
tion was  accordingly  filed. 

It  must  be  confessed  that  the  book  in  question  contained 
some  very  indiscreet  and  offensive  passages.  For  example, 
Mr.  Logan  did  not  scruple  to  assert  that  the  charges  against 
Hastings  had  their  origin  in  misrepresentation  and  falsehood  ; 
that  the  House  of  Commons,  in  pushing  one  of  these  charges, 
was  "  a  tribunal  of  inquisition,  rather  than  a  court  of  Parlia- 
ment," and  that  the  impeachment  was  "  carried  on  from  mo- 
tives of  personal  animosity — not  from  regard  to  public  jus- 
tice." Still  the  merits  of  the  case  were  ably  and  exhaustively 
treated,  the  author  seeming  desirous  of  demonstrating  the  in- 
nocence of  the  illustrious  accused.  It  is  deserving  of  remark 
that,  notwithstanding  the  book  was  published  pending  the 
trial  of  Hastings,  and  doubtless  was  not  without  its  influence 
upon  the  august  tribunal  before  which  he  was  arraigned,  yet 
no  effort  was  made  to  commit  either  author  or  publisher  by 
authority  of  the  Commons,  and  the  prosecution  was  left  to 
take  the  ordinary  course  at  law. 

The  evidence  consisted  simply  of  the  common  proof  of  pub- 
lication, and  is  therefore  omitted  as  unnecessary. 


The  Attorney-General,  Sir  Archibald  Macdon- 
ald,  opened  the  case  as  follows : 

GENTLEMEN  OF  THE  JUKY  :  This  information, 
which  it  has  been  my  duty  to  file  against  the  de- 
fendant, John  Stockdale,  comes  before  you  in  con- 


OX   THE  TRIAL  OP  JOHN  8TOCKDALE.  •  7 

sequence  of  an  address  from  the  House  of  Commons. 
This  you  may  well  suppose  I  do  not  mention  as  in 
any  degree  to  influence  the  judgment  which  you 
are  by  and  hy  to  give  upon  your  oaths.  I  state  it 
as  a  measure  which  they  have  taken,  thinking  it  in 
their  wisdom,  as  everybody  must  think  it,  to  be  the 
fittest  to  bring  before  a  jury  of  the  country  an 
offender  against  themselves,  avoiding  thereby  what 
sometimes  indeed  is  unavoidable,  but  which  they 
wish  to  avoid,  whenever  it  can  be  done  with  pro- 
priety, the  acting  both  as  judges  and  accusers; 
which  they  must  necessarily  have  done  had  they 
resorted  to  their  own  powers,  which  are  great  and 
extensive,  for  the  purpose  of  vindicating  themselves 
against  insult  and  contempt,  but  which,  in  the 
present  instance,  they  have  wisely  forborne  to 
exercise,  thinking  it  better  to  leave  the  defendant 

* 

to  be  dealt  with  by  a  fair  and  impartial  jury. 

The  offence  which  I  impute  to  him  is  that  of 
calumniating  the  House  of  Commons;  not  in  its 
ordinary  legislative  character,  but  when  acting  in 
its  accusatorial  capacity,  conceiving  it  to  be  their 
duty,  on  adequate  occasions,  to  investigate  the  con- 
duct of  persons  in  high  stations,  and  to  leave  that 
conduct  to  be  judged  of  by  the  proper  constitu- 
tional tribunal,  the  peers  in  Parliament  assembled. 

After  due  investigation,  as  it  is  well  known  to 
the  public,  the  Commons  of  Great  Britain  thought 
it  their  duty  to  submit  the  conduct  of  a  servant  of 


8          SPEECH  OF  THE  ATTOENEY-GENERAL 

this  country,  who  had  governed  one  of  its  most 
opulent  dependencies  for  many  years,  to  an  inquiry 
before  the  tribunal.  One  would  have  thought 
that  every  good  subject  in  this  country  would  have 
forborne  imputing  to  the  House  of  Commons 
motives  utterly  unworthy  of  them,  and  of  those 
whom  they  represent ;  instead  of  this,  to  so  great 
a  degree  now  has  the  licentiousness  of  the  press 
arisen,  that  motives,  the  most  unbecoming  that  can 
actuate  any  individual  who  may  be  concerned  in 
the  prosecution  of  public  justice,  are  imputed  to 
the  representatives  of  the  people.  No  credit  is 
given  to  them  for  meaning  to  do  justice  to  their 
country,  but,  on  the  contrary,  private,  personal, 
and  malicious  motives  have  been  imputed  to  the 
Commons  of  Great  Britain. 

When  such  an  imputation  is  made  upon  the  very 
first  tribunal  that  this  country  knows ;  namely,  the 
great  inquest  of  the  nation,  the  Commons  in  Parlia- 
ment assembled,  carrying  a  subject,  who,  as  they 
thought,  had  offended,  to  the  bar  of  the  House  of 
Lords,  I  am  sure  you  will  think  this  attack  so  dan- 
gerous to  the  whole  administration  of  justice,  that 
if  it  be  well  proved  you  cannot  fail  to  give  it  your 
stigma,  by  a  verdict  against  the  defendant. 

Gentlemen,  the  particular  passages  which  I  shall 
put  my  finger  upon  in  this  libel,  it  will  now  be  my 
duty  to  state.  You  know  very  well  that  it  is  your 
duty  to  consider  the  meaning  that  I  have  imputed 


OX  THE  TRIAL  OF  JOHN   STOCKDALE.  9 

to  them  by  the  information ;  if  you  agree  with  me 
in  that  meaning,  you  convict ;  if  you  disagree  with 
me,  of  course  you  acquit 

The  rule  of  your  judgment,  I  apprehend,  with 
submission  to  your  lordship,  will  be  the  ordinary 
acceptation  of  the  words,  and  the  plain  and  obvi- 
ous sense  of  the  several  passages;  if  there  be 
doubt,  or  if  there  be  difficulty ;  if  there  be  screw- 
ing or  ingenuity,  or  unworthy  straining,  on  the  part 
of  a  public  prosecutor,  you  certainly  will  pay  no 
attention  to  that ;  but,  on  the  contrary,  if  he  who 
runs  may  read ;  if  the  meanest  capacity  must 
understand  the  words,  in  their  plain  and  obvious 
sense,  to  be  the  same  as  imputed  in  this  informa- 
tion, in  such  a  case  as  that,  ingenuity  on  the  other 
side  must  be  laid  aside  by  you,  and  you  will  not  be 
over-anxious  to  give  a  meaning  to  words,  other 
than  the  ordinary  and  plain  one. 

In  my  situation,  it  does  not  become  me  to  raise 
in  you  more  indignation  than  the  words  them- 
selves, and  the  plain  and  simple  reading  of  the 
libel  will  do ;  far  be  it  from  me,  if  it  were  in  my 
power  to  do  so,  to  provoke  any  undue  passion  or 
animosity  in  you,  against  conduct  even  such  as  this. 
The  solemnity  of  the  situation  in  which  I  am 
placed  on  this  occasion,  obliges  me  to  address  the 
intellect  both  of  the  court  and  jury,  and  neither 
their  passions  nor  their  prejudices;  for  that  reason 
I  shall  content  myself  with  the  few  observations  I 


10  SPEECH   OF  THE   ATTOKNEY-GENERAL 

have  made,  and  betake  myself  merely  to  the  words 
of  the  libel;  and  leaving  that  with  you,  I  am  most 
confident  that  if  you  follow  the  rule  of  interpreta- 
tion which  you  always  do  upon  such  occasions,  it 
cannot  possibly  happen  that  you  should  differ 
from  me,  in  the  construction  which  I  have  put 
upon  them. 

Gentlemen,  this,  I  should  however  mention  to 
you,  is  a  libel  of  a  more  dangerous  nature  than 
the  ribaldry  that  we  daily  see  crowding  every  one 
of  the  prints  which  appear  every  morning  upon 
our  tables;  because  it  is  contained  in  a  work  which 
discovers  the  author  of  it  to  be  by  no  means  ignor- 
ant of  composition,  but  certainly  to  be  of  good 
understanding,  and  eminently  acquainted  with  let- 
ters. Therefore  when  calumny  of  this  sort  comes 
so  recommended,  and  addressing  itself  to  the  under- 
standings of  the  most  enlightened  part  of  mankind 
— I  mean 'those  who  have  had  the  best  education 
— it  may  sink  deep  into  the  minds  of  those  who 
compose  the  thinking  and  the  judging  part  of  the 
community;  and,  by  misleading  them,  perhaps 
may  be  of  more  real  danger  than  the  momentary 
misleading,  or  the  momentary  inflammation,  of 
common  minds,  by  the  ordinary  publications  of 
the  day. 

This  book  is  entitled,  "  A  Review  of  the  Prin- 
cipal Charges  against  Warren  Hastings,  Esquire, 
late  Governor-General  of  Bengal." 


ON   THE   TRIAL  OF  JOHN  8TOCKDALE.  11 

One  passage  in  it  is  this:  The  House  of  Com- 
mons has  now  given  its  final  decision  with  regard 
to  the  merits  and  demerits  of  Mr.  Hastings.  The 
grand  inquest  of  England  has  delivered  their 
charges,  and  preferred  their  impeachment ;  their 
allegations  are  referred  to  proof;  and  from  the 
appeal  to  the  collective  wisdom  and  justice  of  the 
nation  in  the  supreme  tribunal  of  the  kingdom,  the 
question  comes  to  be  determined,  whether  Mr. 
Hastings  be  guilty  or  not  guilty." 

Another  is  this :  "  What  credit  can  we  give  to 
multiplied  and  accumulated  charges,  when  we  find 
that  they  originate  from  misrepresentation  and 
falsehood?" 

Another  is :  "  An  impeachment  of  error  in 
judgment  with  regard  to  the  quantum  of  a  fine, 
and  for  an  intention  that  never  was  executed, 
characterizes  a  tribunal  of  inquisition,  rather  than 
a  court  of  Parliament." 

In  another  part  it  is  said  :  "The  other  charges 
are  so  insignificant  in  themselves,  or  founded  on 
such  gross  misrepresentations,  that  they  would  not 
affect  an  obscure  individual,  much  less  a  public 
character." 

And  again :  "  If  success  in  any  degree  attends 
the  designs  of  the  accusers  of  Mr,  Hastings,  the 
voice  of  Britain  henceforth  to  her  sons  is,  Go  and 
serve  your  country ;  but  if  you  transgress  the  lint* 
of  official  orders,  though  compelled  by  necessity, 


12  SPEECH   OF   THE   ATTORNEY-GENERAL 

you  do  so  at  the  risk  of  your  fortune,  your  honor, 
and  your  life ;  if  you  act  with  proper  prudence 
against  the  interests  of  the  Empire,  and  bring 
calamity  and  disgrace  upon  your  country,  you 
have  only  to  court  opposition  and  coalesce  with 
your  enemies,  and  you  will  find  a  party  zealous 
and  devoted  to  support  you.  You  may  obtain  a 
vote  of  thanks  from  the  House  of  Commons  for 
your  services,  and  you  may  read  your  history  in 
the  eyes  of  the  mob,  by  the  light  of  bonfires  and 
illuminations.  But  if,  after  exerting  all  your  efforts 
in  the  cause  of  your  country,  you  return  covered 
with  laurels  and  crowned  with  success ;  if  you  pre- 
serve a  loyal  attachment  to  your  sovereign,  you 
may  expect  the  thunders  of  parliamentary  ven- 
geance ;  you  will  certainly  be  impeached,  and 
probably  be  undone." 

Another  passage  is  this :  "  The  office  of  calm, 
deliberate  justice,  is  to  redress  grievances  as  well 
as  to  punish  offences.  It  has  been  affirmed  that 
the  natives  of  India  have  been  deeply  injured ;  but 
has  any  motion  been  made  to  make  them  compen- 
sation for  the  injuries  they  have  sustained  ?  Have 
the  accusers  of  Mr.  Hastings  ever  proposed  to 
bring  back  the  Kohillas  to  the  country  from  which 
they  were  expelled  ?  to  restore  Cheit  Sing  to  the 
Zemindary  of  Benares,  or  to  return  the  Nabob  of 
Oude  the  present  which  the  governor  of  Bengal 
received  from  him  for  the  benefit  of  the  company  ? 


OX  TlIE  TRIAL  OF  JOHN   STOCK  DALE.  13 

Till  such  measures  are  adopted,  and  in  the  train  of 
negotiation,  the  world  has  every  reason  to  conclude 
that  the  im|>eachment  of  Mr.  Hastings  is  carried 
on" — now,  gentlemen,  I  leave  you  to  judge  what 
sort  of  motives  are  imputed  to  the  House  of  Com- 
mons here — "from  motives  of  ]>ersonal  animosity, 
not  from  regard  to  public  justice." 

The  general  meaning,  without  specifying  it  in 
technical  language,  which  I  have  thought  it  my 
duty  to  impute  to  these  words,  is  shortly  this: 
That  the  House  of  Commons,  without  consideration, 
without  reading,  without  hearing,  have  not  been 
ashamed  to  accuse  a  man  of  distinguished  situation, 
and  to  pervert  their  accusatorial  character  from 
the  purposes  of  deliberate,  thoughtful,  considerate 
justice,  to  immediate,  hasty,  passionate,  vindictive, 
personal  animosity.  The  work  represents  that  the 
better  a  man  conducts  himself,  that  the  more  de- 
serving he  has  rendered  himself  of  his  country's 
favor  from  his  past  conduct,  the  more  he  exposes 
himself  to  the  vindictive  proceedings  of  Parlia- 
ment ;  and  that  such  a  man  will  be  impeached  and 
ruined. 

In  another  passage,  personal  animosity  (the  very 
words  are  used)  is  imputed  to  the  Commons  of 
Great  Britain  as  the  motive  of  their  conduct ; 
these  are  too  plain  for  you,  gentlemen,  to  ditti-r 
with  me  in  the  interpretation. 

I  do  not  choose  to  waste  your  time,  and  that  of 


14  MR.  ERSKINE'S  SPEECH  ON  THE 

the  court,  in  so  plain  a  case,  with  much  observa- 
tion; but  hackneyed  as  it  may  be,  it  is  my  duty 
upon  every  one  of  these  occasions,  to  remind  you 
that  the  liberty  of  the  press  consists  in  its  good 
regulation ;  if  it  be  meant  that  it  should  be  pre- 
served with  benefit  to  the  public,  it  must  be  from 
time  to  time  lopped  of  its  unjust  excesses,  by 
reasonable  and  proper  verdicts  of  juries,  in  fit  and 
clear  cases. 


SPEECH  OF  ME.  ERSKINE. 

The  publication  having  been  proven,  Mr.  Ers- 
kine  addressed  the  jury  as  follows;  first  saying: 

I  admit  that  the  witness  has  proved  that  he 
bought  this  book  at  the  shop  of  Mr.  Stockdale — 
Mr.  Stockdale  himself  being  in  the  shop — from  a 
young  man  who  acted  as  his  servant. 

GENTLEMEN  OF  THE  JURY  :  Mr.  Stockdale,  who 
is  brought  as  a  criminal  before  you  for  the  publi- 
cation of  this  book,  has,  by  employing  me  as  his 
advocate,  reposed  what  must  appear  to  many  an 
extraordinary  degree  of  confidence,  since,  although 
he  well  knows  that  I  am  personally  connected  in 
friendship  with  most  of  those  whose  conduct  and 
opinions  are  principally  arraigned  by  its  author, 
he  nevertheless  commits  to  my  hands  his  defence 
and  justification. 


TRIAL  OF  JOHN   BTOCKDALE.  15 

From  a  trust  apparently  so  delicate  and  singular, 
vanity  is  but  too  apt  to  whisper  an  application  to 
some  fancied  merits  of  one's  own ;  but  it  is  proper, 
for  the  honor  of  the  English  bar,  that  the  world 
should  know  that  such  things  happen  to  all  of  us 
daily,  and  of  course;  and  that  the  defendant,  with- 
out any  knowledge  of  me,  or  any  confidence  that 
was  personal,  was  only  not  afraid  to  follow  up  an 
accidental  retainer,  from  the  knowledge  he  has  of 
the  general  character  of  the  profession.  Huppy 
indeed  is  it  for  this  country,  that  what* -v. T  inter- 
1  divisions  may  charaterize  other  places,  of 
which  I  may  have  occasion  to  speak  to-day  ;  how- 
ever the  counsels  of  the  highest  departments  of  the 
state  may  be  occasionally  distracted  by  personal 
considerations,  they  never  enter  these  walls  to 
disturb  the  administration  of  justice ;  whatever 
may  be  our  public  principles,  or  the  private  habits 
of  our  lives,  they  never  cast  even  a  shade  across 
the  path  of  our  professional  duties.  If  this  be  the 
characteristic  even  of  the  bar  of  an  English  court 
of  justice,  what  sacred  impartiality  may  not  every 
man  expect  from  its  jurors  and  its  bench ! 

As,  from  the  indulgence  which  the  court  was 
yesterday  pleased  to  give  to  my  indisposition,  this 
information  was  not  proceeded  on  when  you  w.  iv 
attending  to  try  it,  it  is  probable  you  were  not 
altogether  inattentive  to  what  passed  at  the  trial 
of  the  other  indictment,  prosecuted  also  by  the 


16  ME.  EKSKINE'S  SPEECH  ON  THE 

House  of  Commons;  and,  therefore,  without  i 
restatement  of  the  same  principles,  and  a  simila  • 
quotation  of  authorities  to  support  them,  I  neei 
only  remind  you  of  the  law  applicable  to  thit 
subject,  as  it  was  then  admitted  by  the  Attorney- 
General,  in  concession  to  my  proposition,  and 
confirmed  by  the  higher  authority  of  the  court, 
viz: 

First,  that  every  information  or  indictment  must 
contain  such  a  description  of  the  crime  that  the 
defendant  may  know  what  crime  it  is  which  he  is 
called  upon  to  answer. 

Secondly,  that  the  jury  may  appear  to  be  war- 
ranted in  their  conclusion  of  guilty  or  not  guilty. 

And,  lastly,  that  the  court  may  see  such  a  pre- 
cise and  definite  transgression  upon  the  record,  as 
to  be  able  to  apply  the  punishment  which  judicial 
discretion  may  dictate,  or  which  positive  law  may 
inflict. 

It  was  admitted  also  to  follow  as  a  mere  corol- 
lary from  these  propositions,  that  where  an 
information  charges  a  writing  to  be  composed  or 
published  of  and  concerning  the  Commons  of  Great 
Britain,  with  an  intent  to  bring  that  body  into 
scandal  and  disgrace  with  the  public,  the  author 
cannot  be  brought  within  the  scope  of  such  a 
charge,  unless  the  jury,  on  examination  and  com- 
parison of  the  whole  matter  written  or  published, 
shall  be  satisfied  that  the  particular  passages 


TRIAL  OF  JOHN   8TOCKDALE.  17 

charged  as  criminal,  when  explained  by  the  con- 
text, and  considered  as  part  of  one  entire  work, 
were  meant  and  intended  by  the  author  to  vilify 
the  House  of  Commons  as  a  body,  and  were  written 
of  and  concerning  them  in  Parliament  assembled. 

These  principles  being  settled,  we  are  now  to 
see  what  the  present  information  is. 

It  charges  that  the  defendant,  "  unlawfully, 
wickedly,  and  maliciously  devising,  contriving,  and 
intending  to  asperse,  scandalize,  and  vilify  the 
Commons  of  Great  Britain  in  Parliament  assembled; 
and  most  wickedly  and  audaciously  to  represent 
their  proceedings  as  corrupt  and  unjust,  and  to 
make  it  believed  and  thought,  as  if  the  Commons 

of  Great  Britain  in  Parliament  assembled  were  a 

• 

most  wicked,  tyrannical,  base,  and  corrupt  set  of 
persons,  and  to  bring  them  into  disgrace  with  the 
public  " — the  defendant  published — What  ?  Not 
those  latter  ends  of  sentences  which  the  Attorney- 
General  has  read  from  his  brief,  as  if  they  had 
followed  one  another  in  order  in  this  book  ;  not 
those  scraps  and  tails  of  passages  which  are  patch- 
ed together  ujxm  this  record,  and  pronounced  in 
one  breath,  as  if  they  existed  without  intermediate 
matter  in  the  same  page,  and  without  context  any- 
where. No.  This  is  not  the  accusation,  even 
mutilated  as  it  is;  for  the  information  charges, 
that,  with  intention  to  vilify  the  House  of  Commons, 
the  defendant  published  the  whole  book,  describing 
2  B 


18  ME.  EESKINE'S  SPEECH  ON  THE 

it  on  the  record  by  its  title:  "A  Review  of  the 
principal  charges  against  Warren  Hastings,  Esq., 
late  Governor- General  of  Bengal ;  "  in  which, 
amongst  other  things,  the  matter  particularly 
selected  is  to  be  found.  Your  inquiry,  therefore, 
is  not  confined  to,  whether  the  defendant  published 
those  selected  parts  of  it ;  arid  whether,  looking  at 
them  as  they  are  distorted  by  the  information, 
they  carry  in  fair  construction  the  sense  and  mean- 
ing which  the  innuendoes  put  upon  them  ;  but 
whether  the  author  of  the  entire  work — I  say  the 
author,  since,  if  he  could  defend  himself,  the  pub- 
lisher unquestionably  can,  whether  the  author 
wrote  the  volume  which  I  hold  in  my  hand,  as  a 
free,  manly,  bona  fide  disquisition  of  criminal 
charges  against  his  fellow  citizen,  or  whether  the 
long,  eloquent  discussion  of  them,  which  fills  so  many- 
pages,  was  a  mere  cloak  and  cover  for  the  intro- 
duction of  the  supposed  scandal  imputed  to  the 
selected  passages ;  the  mind  of  the  writer  all  along 
being  intent  on  traducing  the  House  of  Commons, 
and  not  fairly  answering  their  charges  against  Mr. 
Hastings  ? 

This,  gentlemen,  is  the  principal  matter  for  your 
consideration ;  and  therefore,  if  after  you  shall 
have  taken  the  book  itself  into  the  chamber  which 
will  be  provided  for  you,  and  shall  have  read  the 
whole  of  it  with  impartial  attention ;  if,  after  the 
performance  of  this  duty,  you  can  return  here,  and 


TRIAL  OF  JOHN   8TOCKDALE.  19 

with  clear  consciences  pronounce  upon  your  oaths 
that  the  impression  made  upon  you  by  the  pages 
is,  that  the  author  wrote  them  with  the  wicked, 
seditious,  and  corrupt  intentions  charged  by  the 
information ;  you  have  then  my  full  permission  to 
find  the  defendant  guilty ;  but  if,  on  the  other 
hand,  the  general  tenor  of  the  composition  shall 
impress  you  with  respect  for  the  author,  and  point 
him  out  to  you  as  a  man,  mistaken  perhaps  him- 
self, but  not  seeking  to  deceive  others ;  if  every 
line  of  the  work  shall  present  to  you  an  intelligent, 
animated  mind,  glowing  with  a  Christian  compas- 
sion towards  a  fellow  man,  whom  he  belie  veil  to 
be  innocent,  and  with  a  patriot  zeal  for  the  liberty 
of  his  country,  which  he  considered  as  wounded 
through  the  sides,  of  an  oppressed  fellow-citizen; 
if  this  shall  be  the  impression  on  your  consciences 
and  understandings,  when  you  are  called  upon  to 
deliver  your  verdict ;  then  hear  from  me,  that  you 
not  only  work  private  injustice,  but  break  up  the 
press  of  England,  and  surrender  her  rights  and 
liberties  forever,  if  you  convict  the  defendant. 

Gentlemen,  to  enable  you  to  form  a  true  judg- 
ment of  the  meaning  of  this  book,  and  of  the  inten- 
tion of  its  author,  and  to  expose  the  miserable 
juggle  that  is  played  off  in  the  information,  by  the 
combination  of  sentences,  which  in  the  work  itself 
have  no  bearing  upon  one  another — I  will  first 
give  you  the  publication  as  it  is  charged  upon  the 


20  ME.  ERSKINE'S  SPEECH  ON  THE 

record  and  presented  by  the  Attorney-General  in 
opening  the  case  for  the  Crown ;  and  I  will  then, 
by  reading  the  interjacent  matter,  which  is  studi- 
ously kept  out  of  view,  convince  you  of  its  true 
interpretation. 

The  information,  beginning  with  the  first  page 
of  the  book,  charges  as  a  libel  upon  the  House  of 
Commons,  the  following  sentence:  "The  House  of 
Commons  has  now  given  its  final  decision  with 
regard  to  the  merits  and  demerits  of  Mr.  Hastings, 
The  grand  inquest  of  England  have  delivered  their 
charges,  and  preferred  their  impeachment ;  their 
allegations  are  referred  to  proof;  and  from  the 
appeal  to  the  collective  wisdom  and  justice  of  the 
nation  in  the  supreme  tribunal  of  the  kingdom,  the 
question  comes  to  be  determined,  whether  Mr. 
Hastings  be  guilty  or  not  guilty." 

It  is  but  fair  however  to  admit,  that  this  first 
sentence,  which  the  most  ingenious  malice  cannot 
torture  into  a  criminal  construction,  is  charged  by 
the  information  rather  as  introductory  to  what  is 
made  to  follow  it,  than  as  libellous  in  itself;  for  the 
Attorney-General  from  this  introductory  passage  in 
the  first  page,  goes  on  at  a  leap  to  page  thirteenth, 
and  reads,  almost  without  a  stop,  as  if  it  imme- 
diately followed  the  other,  this  sentence  :  "  What 
credit  can  we  give  to  multiplied  and  accumulated 
charges,  when  we  find  that  they  originate  from 
misrepresentation  and  falsehood  ?  " 


TRIAL   OF  JOHN   8TOCKDALE.  21 

From  these  two  passages  thus  standing  together, 
without  the  intervenient  matter  which  occupies 
thirteen  pages,  one  would  imagine,  that  instead  of 
investigating  the  probahility  or  improbability  of 
the  guilt  imputed  to  Mr.  Hastings  ;  instead  of  care- 
fully examining  the  charges  of  the  Commons,  and 
the  defence  of  them  which  had  been  delivered 
before  them,  or  which  was  preparing  for  the 
Lords;  the  author  had  immediately,  and  in  a 
moment  after  stating  the  mere  fact  of  the  impeach- 
ment, decided  that  the  act  of  the  Commons  origi- 
nated from  misrepresentation  and  falsehood. 

Gentlemen,  in  the  same  manner  a  veil  is  cast 
over  all  that  is  written  in  the  next  seven  pages ; 
for  knowing  that  the  context  would  help  to  the 
true  construction,  not  only  of  the  passages  charged 
before,  but  of  those  in  the  sequel  of  this  informa- 
tion ;  the  Attorney-General,  aware  that  it  would 
convince  every  man  who  read  it  that  there  was  no 
intention  in  the  author  to  calumniate  the  House  of 
Commons,  passes  over,  by  another  leap,  to  page 
twenty ;  and  in  the  same  manner,  without  drawing 
his  breath,  and  as  if  it  directly  followed  the  two 
former  sentences  in  the  first  and  thirteenth  pages, 
reads  from  page  twentieth:  "An  impeachment  of 
error  in  judgment  with  regard  to  the  quantum  of 
a  fine,  and  for  an  intention  that  never  was  executed, 
and  never  known  to  the  offending  party,  charac- 


22  MR.  EESKINE'S  SPEECH  ON  THE 

terizes  a  tribunal  of  inquisition  rather  than  a  court 
of  Parliament." 

From  this  passage,  by  another  vault,  he  leaps 
over  one-and-thirty  pages  more,  to  page  fifty-one ; 
where  he  reads  the  following  sentence,  which  he 
mainly  relies  on,  and  upon  which  I  shall  by  and 
by  trouble  you  with  some  observations :  "  Thir- 
teen of  them  passed  in  the  House  of  Commons,  not 
only  without  investigation,  but  without  being  read ; 
and  the  votes  were  given  without  inquiry,  argu- 
ment, or  conviction.  A  majority  had  determined 
to  impeach ;  opposite  parties  met  each  other,  and 
'jostled  in  the  dark,'  to  perplex  the  political  drama, 
and  bring  the  hero  to  a  tragic  catastrophe." 

From  thence,  deriving  new  vigor  from  every 
exertion,  he  makes  his  last  grand  stride  over  forty- 
four  pages  more,  almost  to  the  end  of  the  book, 
charging  a  sentence  in  the  ninety-fifth  page. 

So  that  out  of  a  volume  of  one  hundred  and  ten 
pages,  the  defendant  is  only  charged  with  a  few 
scattered  fragments  of  sentences,  picked  out  of 
three  or  four.  Out  of  a  work  consisting  of  about 
two  thousand  five  hundred  and  thirty  lines,  of 
manly,  spirited  eloquence,  only  forty  or  fifty  lines 
are  culled  from  different  parts  of  it,  and  artfully 
put  together,  so  as  to  rear  up  a  libel,  out  of  a  false 
context,  by  a  supposed  connection  of  sentences  with 
one  another,  which  are  not  only  entirely  independ- 
ent, but  which,  when  compared  with  their  antece- 


TRIAL  OF   JOHN   8TOCKDALE.  'J .", 

dents,  bear  a  totally  different  construction.  In 
this  manner,  the  greatest  works  upon  government, 
the  most  excellent  books  of  science,  the  sacred 
scriptures  themselves  might  be  distorted  into  libels, 
by  forsaking  the  general  context,  and  hanging  a 
meaning  upon  selected  parts:  thus,  as  in  the  text 
put  by  Algernon  Sidney,  "The  fool  hath  said  in 
his  heart,  There  is  no  God;"  the  Attorney-General, 
on  the  principle  of  the  present  proceeding  against 
this  pamphlet,  might  indict  the  publisher  of  the 
Bible  for  blasphemously  denying  the  existence  of 
Heaven,  in  printing,  "  There  is  no  God."  These 
words  alone,  without  the  context,  would  be  selected 
by  the  information,  and  the  Bible,  like  this  book, 
would  be  underscored  to  meet  it;  nor  could  the 
defendant,  in  such  a  case,  have  any  possible  de- 
fence, unless  the  jury  were  permitted  to  see,  by  the 
book  itself,  that  the  verse,  instead  of  denying  the 
existence  of  the  Divinity,  only  imputed  that  imagi- 
nation to  a  fool. 

Gentlemen,  having  now  gone  through  the  Attor- 
ney-General's reading,  the  book  shall  presently 
come  forward  and  si>eak  for  itself.  But  before  I 
can  venture  to  lay  it  before  you,  it  is  proper  to  call 
your  attention  to  how  matters  stood  at  the  time  of 
its  publication;  without  which  the  author's  mean- 
ing and  intention  cannot  possibly  be  understood. 

The  Commons  of  Great  Britain,  in  Parliament 
assembled,  had  accused  Mr.  Hastings,  as  Governor- 


24  ME.  ERSKINE'S  SPEECH  ON  THE 

General  of  Bengal,  of  high  crimes  and  misdemean- 
ors ;  and  their  jurisdiction,  for  that  high  purpose 
of  national  justice,  was  unquestionably  competent ; 
but  it  is  proper  you  should  know  the  nature  of  this 
inquisitorial  capacity.  The  Commons,  in  voting  an 
impeachment,  may  be  compared  to  a  grand  jury 
finding  a  bill  of  indictment  for  the  Crown ;  neither 
the  one  nor  the  other  can  be  supposed  to  proceed 
but  upon  the  matter  which  is  brought  before  them  ; 
neither  of  them  can  find  guilt  without  accusation, 
nor  the  truth  of  accusation  without  evidence.  When 
therefore  we  speak  of  the  accuser  or  accusers  of  a 
person  indicted  for  any  crime,  although  the  grand 
jury  are  the  prosecutors  in  form,  by  giving  effect 
to  the  accusation ;  yet  in  common  parlance  we  do 
not  consider  them  as  the  responsible  authors  of  the 
prosecution.  If  I  were  to  write  of  a  most  wicked 
indictment,  found  against  an  innocent  man,  which 
was  preparing  for  trial,  nobody  who  read  it  would 
conceive  that  I  meant  to  stigmatize  the  grand  jury 
that  found  the  bill ;  but  it  would  be  inquired  imme- 
diately, who  was  the  prosecutor,  and  who  were  the 
witnesses  on  the  back  of  it  ?  In  the  same  manner 
I  mean  to  contend,  that  if  this  book  is  read'  with 
only  common  attention,  the  whole  scope  of  it  will 
be  discovered  to  be  this :  that,  in  the  opinion  of  the 
author,  Mr.  Hastings  had  been  accused  of  mal- 
administration in  India,  from  the  heat  and  spleen 
of  political  divisions  in  Parliament,  and  not  from 


TRIAL  OF   JOHN  8TOCKDALE.  25 

any  zeal  for  national  honor  or  justice;  that  the 
impeachment  did  not  originate  from  government, 
but  from  a  faction  handed  against  it,  which,  by 
misrepresentation  and  violence,  had  fastened  it 
on  an  unwilling  House  of  Commons;  that  prepos- 
BOMcd  with  this  sentiment,  which,  however  un- 
founded, makes  no  j>art  of  the  present  business, 
since  the  publisher  is  not  called  before  you  for 
defaming  individual  members  of  the  Commons,  but 
for  a  contempt  of  the  Commons  as  a  body,  the 
author  pursues  the  charges,  article  by  article; 
enters  into  a  warm  and  animated  vindication  of 
Mr.  Hastings,  by  regular  answers  to  each  of  them ; 
and  that,  as  far  as  the  mind  and  soul  of  a  man  can 
be  visible,  I  might  almost  say  embodied  in  his  writ- 
ings, his  intention  throughout  the  whole  volume 
appears  to  have  been  to  charge  with  injustice  the 
private  accusers  of  Mr.  Hastings,  and  not  the  House 
of  Commons  as  a  body,  which  undoubtedly  rather 
reluctantly  gave  way  to,  than  heartily  adopted,  the 
impeachment.  This  will  be  found  to  be  the  pal- 
pable scope  of  the  book ;  and  no  man  who  can 
read  English,  and  who,  at  the  same  time  will  have 
the  candor  and  common  sense  to  take  up  his  im- 
pressions from  what  is  written  in  it,  instead  of 
bringing  his  own  along  with  him  to  the  reading 
of  it,  can  possibly  understand  it  otherwise. 

But  it  may  be  said,  that  admitting  this  to  be 
the  scope  and  design  of  the  author,  what  right  had 


26  MR.  ERSKINE'S  SPEECH  ON  THE 

he  to  canvass  the  merits  of  an  accusation  upon  the 
records  of  the  Commons ;  more  especially  while  it 
was  in  the  course  of  legal  procedure?  This,  I 
confess,  might  have  been  a  serious  question ;  but 
the  Commons,  as  prosecutors  of  this  information, 
seem  to  have  waived  or  forfeited  their  right  to  ask 
it.  Before  they  sent  the  Attorney-General  into  this 
place  to  punish  the  publication  of  answers  to  their 
charges,  they  should  have  recollected  that  their 
own  want  of  circumspection  in  the  maintenance  of 
their  privileges,  and  in  the  protection  of  persons 
accused  before  them,  had  given  to  the  public  the 
charges  themselves,  which  should  have  been  con- 
fined to  their  own  journals.  The  course  and  prac- 
tice of  Parliament  might  warrant  the  printing  of 
them  for  the  use  of  their  own  members ;  but  there 
the  publication  should  have  stopped,  and  all  fur- 
ther progress  been  resisted  by  authority.  If  they 
were  resolved  to  consider  answers  to  their  charges 
as  a  contempt  of  their  privileges,  and  to  punish  the 
publication  of  them  by  such  severe  prosecutions,  it 
would  have  well  become  them  to  have  begun  first 
with  those  printers  who,  by  publishing  the  charges 
themselves  throughout  the  whole  kingdom,  or 
rather  throughout  the  civilized  world,  were  antici- 
pating the  passions  and  judgments  of  the  public 
against  a  subject  of  England  upon  his  trial,  so  as 
to  make  the  publication  of  answers  to  them  not 
merely  a  privilege,  but  a  debt  and  duty  to  humanity 


TRIAL   OF  JOHN  8TOCKDALE.  27 

and  justice.  The  Commons  of  Great  Britain  claimed 
and  exercised  the  privilege  of  questioning  the  in- 
nocence of  Mr.  Hustings  by  their  impeachment; 
but  as,  however  questioned,  it  was  still  to  be  pre- 
sumed and  protected  until  guilt  was  established 
by  a  judgment,  he  whom  they  had  accused  had  an 
equal  claim  upon  their  justice,  to  guard  him  from 
prejudice  and  misrepresentation  until  the  hour  of 
trial. 

Had  the  Commons,  therefore,  by  the  exercise  of 
their  high,  necessary,  and  legal  privileges,  kept  the 
public  aloof  from  all  canvass  of  their  proceedings, 
by  an  early  punishment  of  printers,  who,  without 
reserve  or  secrecy,  had  sent  out  the  charges  into 
the  world  from  a  thousand  presses  in  every  form 
of  publication,  they  would  then  have  stood  upon 
ground  to-day  from  whence  no  argument  of  policy 
or  justice  could  have  removed  them;  because 
nothing  can  be  more  incompatible  with  either, 
than  appeals  to  the  many  upon  subjects  of  judica- 
ture, which  by  common  consent  a  few  are  appointed 
to  determine,  and  which  must  be  determined  by 
facts  and  principles,  which  the  multitude  have 
neither  leisure  nor  knowledge  to  investigate.  But 
then  let  it  be  remembered,  that  it  is  for  those  who 
have  the  authority  to  accuse  and  punish,  to  set  the 
example  of,  and  to  enforce  this  reserve,  which  is  so 
necessary  for  the  ends  » t'  justice,  <  burti  of  l;iw 
therefore  in  England  never  endure  the  publication 


28  ME.  ERSKINE'S  SPEECH  ON  THE 

of  their  records ;  and  a  prosecutor  of  an  indictment 
would  be  attached  for  such  a  publication  ;  and, 
upon  the  same  principle,  a  defendant  would  be 
punished  for  anticipating  the  justice  of  his  country 
by  the  publication  of  his  defence,  the  public  being 
no  party  to  it  until  the  tribunal  appointed  for  its 
determination  be  open  for  its  decision. 

Gentlemen, .  you  have  a  right  to  take  judicial 
notice  of  these  matters  without  the  proof  of  them 
by  witnesses ;  for  jurors  may  not  only,  without 
evidence,  found  their  verdicts  on  facts  that  are 
notorious,  but  upon  what  they  know  privately 
themselves,  after  revealing  it  upon  oath  to  one 
another  ;  and  therefore  you  are  always  to  remem- 
ber, that  this  book  was  written  when  the  charges 
against  Mr.  Hastings,  to  which  it  is  an  answer, 
were,  to  the  knowledge  of  the  Commons,  for  we 
cannot  presume  our  watchmen  to  have  been  asleep, 
publicly  hawked  about  in  every  pamphlet,  maga- 
zine and  newspaper  in  the  kingdom.  You  well 
know  with  what  a  curious  appetite  these  charges 
were  devoured  by  the  whole  public,  interesting  as 
they  were,  not  only  from  their  importance,  but 
from  the  merit  of  their  composition  ;  certainly  not 
so  intended  by  the  honorable  and  excellent  com- 
poser* to  oppress  the  accused,  but  because  the  com- 
monest subjects  swell  into  eloquence  under  the 
touch  of  his  sublime  genius.  Thus  by  the  remiss- 

*  Edmund  Burke. 


TRIAL  OF   JOHN   8TOCKDALE.  29 

ness  of  the  Commons,  who  are  now  the  prosecutors, 
of  this  information,  a  subject  of  England,  who  was 
not  even  charged  with  contumacious  resistance  to 
authority,  much  less  a  proclaimed  outlaw,  and 
therefore  fully  entitled  to  every  security  which 
the  customs  and  statutes  of  the  kingdom  hold  out 
for  the  protection  of  British  liberty,  saw  himself 
pierced  with  the  arrows  of  thousands  and  ten  thou- 
sands of  libels. 

Gentlemen,  ere  I  venture  to  lay  the  book  before 
you,  it  must  be  yet  further  remembered,  for  the 
fact  is  equally  notorious,  that  under  these  inauspi- 
cious circumstances,  the  trial  of  Mr.  Hastings  at 
the  bar  of  the  lords  had  actually  commenced  long 
before  its  publication. 

There  the  most  august  and  striking  spectacle 
was  daily  exhibited,  which  the  world  ever  witnessed. 
A  vast  stage  of  justice  was  erected,  awful  from  its 
high  authority,  splendid  from  its  illustrious  dignity, 
venerable  from  the  learning  and  wisdom  of  its 
judges,  captivating  and  affecting  from  the  mighty 
concourse  of  all  ranks  and  conditions  which  daily 
flocked  into  it,  as  into  a  theatre  of  pleasure;* 
there,  when  the  whole  public  mind  was  at  once 
awed  and  softened  to  the  impression  of  every 
human  affection,  there  appeared,  day  after  day,  one 
after  another,  men  of  the  most  powerful  and 

*  The  impeachment    was  carried   on  in  the  great  Hull  of  Westmin- 
ster. 


30  ME.  ERSKINE'S  SPEECH  ON  THE 

exalted  talents,  eclipsing  by  their  accusing  elo- 
quence the  most  boasted  harangues  of  antiquity  ; 
rousing  the  pride  of  national  resentment  by  the 
boldest  invectives  against  broken  faith  and  violated 
treaties,  and  shaking  the  bosom  with  alternate  pity 
and  horror  by  the  most  glowing  pictures  of  insulted 
nature  and  humanity ;  ever  animated  and  ener- 
getic, from  the  love  of  fame  which  is  the  inherent 
passion  of  genius ;  firm  and  indefatigable,  from  a 
strong  prepossession  of  the  justice  of  their  cause. 

Gentlemen,  when  the  author  sat  down  to  write  the 
book  now  before  you,  all  this  terrible,  unceasing, 
exhaustless  artillery  of  warm  zeal,  matchless  vigor 
of  understanding,  consuming  and  devouring  elo- 
quence united  with  the  highest  dignity,  was  daily, 
and  without  prospect  of  conclusion,  pouring  forth 
upon  one  private,  unprotected  man,  who  was 
bound  to  hear  it,  in  the  face  of  the  whole  people 
of  England,  with  reverential  submission  and  silence. 
I  do  not  complain  of  this  as  I  did  of  the  publica- 
tion of  the  charges,  because  it  was  what  the  law 
allowed  and  sanctioned  in-  the  course  of  a  public 
trial ;  but  when  it  is  remembered  that  we  are  not 
angels,  but  weak,  fallible  men,  and  that  even  the 
noble  judges  of  that  high  tribunal  are  clothed 
beneath  their  ermines  with  the  common  infirmities 
of  man's  nature,  it  will  bring  us  all  to  a  proper 
temper  for  considering  the  book  itself,  which  will 
in  a  few  moments  be  laid  before  you.  But  first, 


TRIAL  OF  JOHN  8TOCKDALE.  31 

let  me  once  more  remind  you,  that  it  was  under  all 
these  circumstances,  and  amidst  the  blaze  of  pas- 
sion and  prejudice,  which  the  scene  I  have  been 
endeavoring  faintly  to  describe  to  you  might  be 
8upi>osed  likely  to  produce,  that  the  author,  whose 
name  I  will  now  give  to  you,  sat  down  to  compose 
the  book  which  is  prosecuted  to-day  as  a  libel* 

The  history  of  it  is  very  short  and  natural. 

The  Rev.  Mr.  Logan,  minister  of  the  gospel  at 
Leith,  in  Scotland,  a  clergyman  of  the  purest 
morals,  and,  as  you  will  see,  by  and  by,  of  very 
superior  talents,  well  acquainted  with  the  human 
character,  and  knowing  the  difficulty  of  bringing 
back  public  opinion  after  it  is  settled  on  any  sub- 
ject, took  a  warm,  unbought,  unsolicited  interest 
in  the  situation  of  Mr.  Hastings,  and  determined, 
if  possible,  to  arrest  and  suspend  the  public  judg- 
ment concerning  him.  He  felt  for  the  situation  of 
a  fellow-citizen,  exposed  to  a  trial  which,  whether 
right  or  wrong,  is  undoubtedly  a  severe  one;  a 
trial,  certainly  not  confined  to  a  few  criminal  acts 
like  those  we  are  accustomed  to,  but  comprehend- 
ing the  transaction  of  a  whole  life,  and  the  com- 
plicated policies  of  numerous  and  distant  nations; 
a  trial  which  had  neither  visible  limits  to  its  dura- 
tion, bounds  to  its  expense,  nor  circumscribed  com- 
pass  for  the  grasp  of  memory  or  understanding ; 
a  trial,  which  had  therefore  broken  loose  from  the 
common  forms  of  decision,  and  had  become  the 


32  ME.  EKSKINE'S  SPEECH  ON  THE 

universal  topic  of  discussion  in  the  world,  supersed- 
ing not  only  every  other  grave  pursuit,  but  every 
fashionable  dissipation. 

Gentlemen,  the  question  you  have  therefore  to 
try  upon  all  this  matter  is  extremely  simple.  It  is 
neither  more  nor  less  than  this.  At  a  time  when 
the  .charges  against  Mr.  Hastings  were,  by  the 
implied  consent  of  the  Commons,  in  every  hand 
and  on  every  table;  when,  by  their  managers,  the 
lightning  of  eloquence  was  incessantly  consuming 
him,  and  flashing  in  the  eyes  of  the  public ;  when 
every  man  was  with  perfect  impunity  saying,  and 
writing,  and  publishing  just  what  he  pleased  of  the 
supposed  plunderer  and  devastator  of  nations; 
would  it  have  been  criminal  in  Mr.  Hastings  him- 
self to  have  reminded  the  public  that  he  was  a 
native  of  this  free  land,  entitled  to  the  common 
protection  of  her  justice,  and  that  he  had  a  defence 
in  his  turn  to  offer  to  them,  the  outlines  of  which  he 
implored  them  in  the  meantime  to  receive",  as  an 
antidote  to  the  unlimited  and  unpunished  poison  in 
circulation  against  him  ?  This  is,  without  color 
or  exaggeration,  the  true  question  you  are  to 
decide ;  because  I  assert,  without  the  hazard  of 
contradiction,  that  if  Mr.  Hastings  himself  could 
have  stood  justified  or  excused  in  your  eyes  for 
publishing  this  volume  in  his  own  defence,  the 
author,  if  he  wrote  it  bona  fide,  to  defend  him, 
must  stand  equally  excused  and  justified ;  and 


TRIAL  OF   JOIHf   STOCKDALE.  33 

it'  the  author  be  justified,  the  publisher  cannot  be 
criminal,  unless  you  had  evidence  that  it  was  pub- 
lished by  him,  with  a  different  spirit  and  intention 
from  those  in  which  it  was  written.  The  question 
therefore  is  correctly  what  I  just  now  stated  it  to 
be:  Could  Mr.  Hastings  have  been  condemned  to 
infamy  for  writing  this  book  ? 

Gentlemen,  I  tremble  with  indignation,  to  be 
driven  to  put  such  a  question  in  England.  Shall 
it  be  endured,  that  a  subject  of  this  country 
instead  of  being  arraigned  and  tried  for  some 
single  act  in  her  ordinary  courts,  where  the 
accusation,  as  soon  at  least  as  it  is  made  public,  is 
followed  within  a  few  hours  by  the  decision,  may 
be  imj>eachetl  by  the  Commons  for  the  transaction* 
of  twenty  years ;  that  the  accusation  shall  spread 
as  wide  as  the  region  of  letters;  that  the  accused 
shall  stand,  day  after  day,  and  year  after  year,  as 
a  spectacle  before  the  public,  which  shall  be  kept 
in  a  perpetual  state  of  inflammation  against  him ; 
yet  that  he  shall  not,  without  the  severest  penal- 
ties, be  permitted  to  submit  anything  to  the  judg- 
ment of  mankind  in  his  defence?  If  this  be  law, 
which  it  is  for  you  to-day  to  decide,  such  a  man 
has  no  trial ;  this  great  hall,  built  by  our  fathers 
for  English  justice,  is  no  longer  a  court,  but  an 
altar ;  and  an  Englishman,  instead  of  being  judged 
in  it  by  God  and  his  country,  is  a  victim  and  a 
sacrifice. 

3  B 


34  ME.  ERSKINE'S  SPEECH  ON  THE 

You  will  carefully  remember  that  I  am  not  pre- 
suming to  question  either  the  right  or  the  duty  of 
the  Commons  of  Great  Britain  to  impeach ;  neither 
am  I  arraigning  the  propriety  of  their  selecting,  as 
they  have  done,  the  most  extraordinary  persons  for 
ability  which  the  age  has  produced,  to  manage 
their  impeachment.  Much  less  am  I  censuring  the 
managers  themselves,  charged  with  the  conduct  of 
it  before  the  Lords,  who  were  undoubtedly  bound, 
by  their  duty  to  the  House,  and  to  the  public,  to 
expatiate  upon  the  crimes  of  the  person  whom  they 
had  accused.  None  of  these  points  are  questioned 
by  me,  nor  are  in  this  place  questionable.  I  only 
desire  to  have  it  decided,  whether,  if  the  Commons, 
when  national  expediency  happens  to  call  in  their 
judgment  for  an  impeachment,  shall,  instead  of 
keeping  it  on  their  own  records,  and  carrying  it 
with  due  solemnity  to  the  peers  for  trial,  permit  it 
without  censure  and  punishment  to  be  sold  like  a 
common  newspaper  in  the  shop  of  my  client,  so 
crowded  with  their  own  members,  that  no  plain 
man,  without  privilege  of  Parliament,  can  hope  even 
for  a  sight  of  the  fire  in  a  winter's  day ;  every  man 
buying  it,  reading  it,  and  commenting  upon  it; 
the  gentleman  himself  who  is  the  object  of  it,  or 
his  friend  in  his  absence,  may  not,  without  step- 
ping beyond  the  bonds  of  English  freedom,  put  a 
copy  of  what  is  thus  published  into  his  pocket, 
and  send  back  to  the  very  same  shop  for  publica- 


TRIAL  OF  JOHN   8TOCKDALE.  '•'•' 

tion  a  bona.  fide,  rational,  able  answer  to  it,  in  order 
that  the  bane  and  antidote  may  circulate  together, 
and  the  public  be  kept  straight  till  the  day  of 
decision.  If  you  think,  gentlemen,  that  this  com- 
mon duty  of  self-preservation,  in  the  accused  him- 
self, which  nature  writes  as  a  law  upon  the  hearts 
of  even  savages  and  brutes,  is  nevertheless  too  high 
a  privilege  to  be  enjoyed  by  an  impeached  and 
suffering  Englishman ;  or  if  you  think  it  beyond 
the  offices  of  humanity  and  justice,  when  brought 
home  to  the  hand  of  a  brother  or  a  friend,  you  will 
say  so  by  your  verdict  of  guilty;  the  decision  will 
then  be  yours,  and  the  consolation  mine,  that  I 
labored  to  avert  it.  A  very  small  part  of  the 
misery  which  will  follow  from  it,  is  likely  to  light 
upon  me ;  the  rest  will  be  divided  amongst  your- 
selves and  your  children. 

Gentlemen,  I  observe  plainly,  and  with  infinite 
satisfaction,  that  you  are  shocked  and  offended  at 
my  even  supposing  it  possible  you  should  pro- 
nounce such  a  detestable  judgment ;  and  that  you 
only  require  of  me  to  make  out  to  your  satisfaction, 
as  I  promised,  that  the  real  scope  and  object  of 
this  book  is  a  bona  fide  defence  of  Mr.  Hastings, 
and  not  a  cloak  and  cover  for  scandal  on  the  House 
of  Commons.  I  engage  to  do  this,  and  I  engage  for 
nothing  more.  I  shall  make  an  open,  manly  de- 
fence ;  I  mean  to  torture  no  expressions  from  their 
natural  constructions ;  to  dispute  no  innuendoes  on 


36  ME.  ERSKINE'S  SPEECH  ON  THE 

the  record,  should  any  of  them  have  a  fair  appli- 
cation ;  nor  to  conceal  from  your  notice  any  un- 
guarded intemperate  expressions  which  may  perhaps 
be  found  to  chequer  the  vigorous  and  animated 
career  of  the  work.  Such  a  conduct  might,  by 
accident,  shelter  the  defendant ;  but  it  would  be 
the  surrender  of  the  very  principle  on  which  alone 
the  liberty  of  the  English  press  can  stand ;  and  I 
shall  never  defend  any  man  from  a  temporary  im- 
prisonment, by  the  permanent  loss  of  my  own 
liberty,  and  the  ruin  of  my  country.  I  mean, 
therefore  to  submit  to  you,  that  though  you 
should  find  a  few  line§  in  page  thirteen,  or  twenty- 
one  ;  a  few  more  on  page  fifty-one,  and  some  others 
in  other  places ;  containing  expressions  bearing  on 
the  House  of  Commons,  even  as  a  body,  which,  if 
written  as  independent  paragraphs  by  themselves, 
would  be  indefensible  libels,  yet  that  you  have  a 
right  to  pass  them  over  in  judgment,  provided  the 
substance  clearly  appears  to  be  a  bona  fide  conclu- 
sion, arising  from  the  honest  investigation  of  a 
subject  which  it  was  lawful  to  investigate,  and  the 
questionable  expressions,  the  visible  effusions  of  a 
zealous  temper,  engaged  in  an  honorable  and  legal 
pursuit.  After  this  preparation,  I  am  not  afraid 
to  lay  the  book  in  its  genuine  state  before  you. 

The  pamphlet  begins  thus,  "The  House  of 
Commons  has  now  given  its  final  decision  with 
regard  to  the  merits  and  demerits  of  Mr.  Hastings. 


TRIAL  OF  JOHN   8TOCKDALE.  37 

The  grand  inquest  of  England  have  delivered  their 
charges  and  preferred  their  im{>eachment ;  their 
allegations  are  referred  to  proof;  and  from  the  ap- 
I>eal  to  the  collective  wisdom  and  justice  of  the 
nation  in  the  supreme  trihunal  of  the  kingdom,  the 
question  comes  to  be  determined  whether  Mr.  Hast- 
ings be  guilty  or  not  guilty  ?  " 

Now  if,  immediately  after  what  I  have  just  read 
to  you,  which  is  the  first  part  charged  by  the  in- 
formation, the  author  had  said,  "Will  accusations 
built  on  such  a  baseless  fabric  prepossess  the  public 
in  favor  of  the  impeachment?  What  credit  can 
we  give  to  multiplied  and  accumulated  charges, 
when  we  find  that  they  originate  from  misrepre- 
sentation and  falsehood?"  every  man  would  have 
been  justified  in  pronouncing  that  he  was  attacking 
the  House  of  Commons,  because  the  groundless  ac- 
cusations noticed  in  the  second  sentence  could  have 
no  reference  but  to  the  House  itself  mentioned  by 
name  in  the  first  and  only  sentence  which  preceded 
it 

But,  gentlemen,  to  your  astonishment,  I  will  now 
read  what  intervenes  between  these  two  jMussages ; 
from  which  you  will  see,  beyond  a  possibility  of 
doubt,  that  the  author  never  meant  to  calumniate 
the  House  of  Commons,  but  to  say  that  the  accusa- 
tion of  Mr.  Hastings  before  the  whole  House  grew 
out  of  a  committee  of  seorecv  established  some 

V 

years  before,  and  was  afterwards  brought  forward 


38  ME.  ERSKINE'S  SPEECH  ON  THE 

by  the  spleen  of  private  enemies,  and  a  faction  in 
the  government.  This  will  appear,  not  only  from 
the  grammatical  construction  of  the  words,  but 
from  what  is  better  than  words,  from  the  meaning 
which  a  person  writing  as  a  friend  of  Mr.  Hastings 
must  be  supposed  to  have  intended  to  convey. 
Why  should  such  a  friend  attack  the  House  of  Com- 
mons ?  Will  any  man  gravely  tell  me  that  the 
House  of  Commons,  as  a  body,  ever  wished  to  im- 
peach Mr.  Hastings?  Do  we  not  all  know  that 
they  constantly  hung  back  from  it,  and  hardly 
knew  where  they  were,  or  what  to  do,  when  they 
found  themselves  entangled  with  it  ?  My  learned 
friend,  the  Attorney-General,  is  a  member  of  this 
assembly;  perhaps  he  may  tell  you,  by  and  by, 
what  he  thought  of  it,  and  whether  he  ever  marked 
any  disposition  in  the  majority  of  the  Commons 
hostile  to  Mr.  Hastings.  But  why  should  I  dis- 
tress my  friend  by  the  question?  the  fact  is  suffi- 
ciently notorious;  and  what  I  am  going  to  read 
from  the  book  itself,  which  is  left  out  in  the  infor- 
mation, is  too  plain  for  controversy. 

"  Whatever  may  be  the  event  of  the  impeach- 
ment, the  proper  exercise  of  such  power  is  a  valua- 
ble privilege  of  the  British  constitution,  a  formida- 
ble guardian  of  the  public  liberty  and  the  dignity 
of  the  nation.  The  only  danger  is,  that  from  the 
influence  of  faction,  and  the  awe  which  is  annexed 
to  great  names,  they  may  be  prompted  to  deter- 


TRIAL   OF  JOHN   8TOCKDALE.  39 

mine  before  they  inquire,  and  to  pronounce  judg- 
ment  without  examination." 

Here  is  the  clue  to  the  whole  pamphlet.  The 
author  trusts  to  ami  respects  the  House  of  Commons, 
but  is  afraid  their  mature  and  just  consideration 
may  be  disturbed  by  faction.  Now,  does  he  mean 
government,  by  faction  ?  Does  he  mean  the  ma- 
jority of  the  Commons,  by  faction  ?  Will  the  House, 
which  is  the  prosecutor  here,  sanction  that  applica- 
tion of  the  phrase?  or  will  the  Attorney-General 
admit  the  majority  to  be  the  true  innuendo  of 
faction  ?  I  wish  he  would ;  I  should  then  have 
gained  something  at  least  by  this  extraordinary 
debate ;  but  I  have  no  expectation  of  the  sort ; 
such  a  concession  would  be  too  great  a  sacrifice  to 
any  prosecution,  at  a  time  when  everything  is  con- 
sidered as  faction  that  disturbs  the  repose  of  the 
minister  in  Parliament.  But,  indeed,  gentlemen, 
some  things  are  too  plain  for  argument.  The 
author  certainly  means  my  friends,  who,  whatever 
qualifications  may  belong  to  them,  must  be  con- 
tented with  the  appellation  of  faction,  while  they 
oppose  the  minister  in  the  House  of  Commons ;  but 
the  House,  having  given  this  meaning  to  the  phrase 
of  faction  for  its  own  purposes,  cannot  in  decency 
change  the  interpretation  in  order  to  convict  my 
client.  I  take  that  to  be  beyond  the  privilege  of 
Parliament 

The  same  bearing   upon  individual  members  of 


40  MR,  ERSKINE'S  SPEECH  ON  THE 

the  Commons,  and  not  on  the  Commons  as  a  body, 
is  obvious  throughout.  Thus,  after  saying,  in  page 
nine,  that  the  East  India  Company  had  thanked 
Mr.  Hastings  for  his  meritorious  services,  which  is 
unquestionably  true,  he  adds,  "  that  mankind  would 
abide  by  their  deliberate  decision,  rather  than  by 
the  intemperate  assertion  of  a  committee. " 

This  he  writes  after  the  impeachment  was  found 
by  the  Commons  at  large ;  but  he  takes  no  account 
of  their  proceedings;  imputing  the  whole  to  the 
original  committee,  i.  e.  the  committee  of  secrecy ; 
so  called,  I  suppose,  from  their  being  the  authors 
of  twenty  volumes  in  folio,  which  will  remain  a 
secret  to  all  posterity,  as  nobody  will  ever  read 
them.  The  same  construction  is  equally  plain  from 
what  immediately  follows :  "  The  report  of  the 
committee  of  secrecy  also  states  that  the  happiness 
of  the  native  inhabitants  of  India  has  been  deeply 
affected,  their  confidence  in  English  faith  and  lenity 
shaken  and  impaired,  and  the  character  of  this 
nation  wantonly  and  wickedly  degraded." 

Here  again  you  are  grossly  misled  by  the  omis- 
sion of  near  twenty-one  pages;  for  the  author, 
though  he  is  here  speaking  of  this  committee  by 
name,  which  brought  forward  the  charges  to  the 
notice  of  the  House,  and  which  he  continues  to  do 
onward  to  the  next  select  paragraph  ;  yet,  by  arbi- 
trarily sinking  the  whole  context,  he  is  taken  to 
be  speaking  of  the  house  as  a  body,  when,  in  the 


TRIAL  OF   JOHN  8TOCKDALE.  41 

passage  next  charged  by  the  information,  he  re- 
proaches the  accusers  of  Mr.  Hastings ;  although, 
so  far  is  he  from  considering  them  as  the  House  of 
Commons,  that  in  the  very  same  page  he  speaks  of 
the  articles  as  the  charges,  not  even  of  the  com- 
mittee, but  of  Mr.  Burke  alone,  the  most  active 
and  intelligent  member  of  that  body,  having  been 
circulated  in  India  by  a  relation  of  that  gentleman  : 
"The  charges  of  Mr.  Burke  have  been  carried  to 
Calcutta,  and  carefully  circulated  in  India." 

Now,  if  we  were  considering  these  passages  of 
the  work  as  calumniating  a  body  of  gentlemen, 
many  of  whom  I  must  be  supposed  highly  to  re- 
spect, or  as  reflecting  upon  my  worthy  friend  whose 
name  I  have  mentioned,  it  would  give  rise  to  a 
totally  different  inquiry,  which  it  is  neither  my 
duty  nor  yours  to  agitate;  but  surely,  the  more 
that  consideration  obtrudes  itself  upon  us,  the  more 
clearly  it  demonstrates  that  the  author's  whole 
direction  was  against  the  individual  accusers  of 
Mr.  Hastings,  and  not  against  the  House  of  Com- 
mons, which  merely  trusted  to  the  matter  they  had 
collected. 

Although,  from  a  caution  which  my  situation 
dictates  as  representing  another,  I  have  thought  it 
my  duty  thus  to  point  out  to  you  the  real  intention 
of  the  author,  as  it  appears  by  the  fair  construction 
of  the  work,  yet  I  protest,  that  in  my  own  appiv- 
hension  it  is  very  immaterial  whether  he  speaks  of 


42  ME.  ERSKINE'S  SPEECH  ON  THE 

the  committee  or  of  the  House,  provided  you  shall 
think  the  whole  volume  a  bona  fide  defence  of  Mr. 
Hastings.  This  is  the  great  point  I  am,  by  all  my 
observations,  endeavoring  to  establish,  and  which  I 
think  no  man  who  reads  the  following  short  pas- 
sages can  doubt.  Very  intelligent  persons  have 
indeed  considered  them,  if  founded  in  facts,  to 
render  every  other  amplification  unnecessary.  The 
first  of  them  is  as  follows  :  "  It  was  known,  at  that 
time,  that  Mr.  Hastings  had  not  only  descended 
from  a  public  to  a  private  station,  but  that  he  was 
persecuted  with  accusations  and  impeachments. 
But  none  of  these  suffering  millions  have  sent  their 
complaints  to  this  country ;  not  a  sigh  nor  a  groan 
has  been  wafted  from  India  to  Britain.  On  the 
contrary,  testimonies  the  most  honorable  to  the 
character  and  merit  of  Mr.  Hastings,  have  been 
transmitted  by  those  very  princes  whom  he  has 
been  supposed  to  have  loaded  with  the  deepest 
injuries. " 

Here,  gentlemen,  we  must  be  permitted  to  pause 
together  a  little ;  for  in  examining  whether  these 
pages  were  written  as  an  honest  answer  to  the 
charges  of  the  Commons,  or  as  a  prostituted  de- 
fence of  a  notorious  criminal,  whom  the  writer 
believed  to  be  guilty,  truth  becomes  material  at 
every  step ;  for  if  in  any  instance  he  be  detected 
of  a  wilful  misrepresentation,  he  is  no  longer  an 
object  of  your  attention. 


TRIAL  OF   JOHN   STOCKDALE.  43 

Will  the  Attorney-General  proceed  then  to  detect 
the  hypocrisy  of  our  author,  by  giving  us  some 
detail  of  the  proof*  by  which  these  personal  enor- 
mities have  been  established,  and  which  the  writer 
must  be  supj>osed  to  have  been  acquainted  with  ? 
I  ask  this  as  the  defender  of  Mr.  Stockdale,  not  of 
Mr.  Hastings,  with  whom  I  have  no  concern.  I 
am  sorry  indeed  to  be  so  often  obliged  to  repeat 
this  protest;  but  I  really  feel  myself  embarrassed 
with  those  repeated  coincidences  of  defence  which 
thicken  on  me  as  I  advance,  and  which  were,  no 
doubt,  overlooked  by  the  Commons  when  they 
directed  this  interlocutory  inquiry  into  his  conduct. 
I  ask  then,  as  counsel  for  Mr.  Stockdale,  whether, 
when  a  great  state  criminal  is  brought  for  justice 
at  an  immense  expense  to  the  public,  accused  of 
the  most  oppressive  cruelties,  and  charged  with 
the  robbery  of  princes  and  the  destruction  of 
nations,  it  is  not  open  to  any  one  to  ask,  Who  are 
his  accusers?  What  are  the  sources  and  the 
authorities  of  these  shocking  complaints  ?  Where 
are  the  ambassadors  or  memorials  of  those  princes 
whose  ivvi'iiiu-  li«-  !i:i-  |>liiii<l<!v  i  •/  \Vhere  are  tin- 
witnesses  for  those  unhappy  men  in  whose  persons 
the  rights  of  humanity  have  been  violated  ?  How 
deeply  buried  is  the  blood  of  the  innocent,  that  it 
does  not  rise  up  in  retributive  judgment  to  con- 
found the  guilty !  These  surely  are  questions, 
which,  when  a  fellow-citizen  is  upon  a  long,  painful, 


44  ME.  ERSKINE'S  SPEECH  ON  THE 

and  expensive  trial,  humanity  has  a  right  to  pro- 
pose ;  which  the  plain  sense  of  the  most  unlettered 
man  may  be  expected  to  dictate,  and  which  all 
history  must  provoke  from  the  more  enlightened. 
When  Cicero  impeached  Verres  before  the  great 
tribunal  of  Rome  of  similar  cruelties  and  depreda- 
tions in  her  provinces,  the  Roman  people  were  not 
left  to  such  inquiries.  All  Sicily  surrounded  the 
Forum,  demanding  justice  upon  her  plunderer  and 
spoiler,  with  tears  and  imprecations.  It  was  not 
by  the  eloquence  of  the  orator,  but  by  the  cries 
and  tears  of  the  miserable,  that  Cicero  prevailed 
in  that  illustrious  cause.  Verres  fled  from  the 
oaths  of  his  accusers  and  their  witnesses,  and  not 
from  the  voice  of  Tully.  To  preserve  the  fame  of  his 
eloquence,  he  composed  his  five  celebrated  speeches, 
but  they  never  were  delivered  against  the  criminal 
because  he  had  fled  from  the  city,  appalled  with 
the  sight  of  the  persecuted  and  the  oppressed.  It 
may  be  said,  that  the  cases  of  Sicily  and  India  are 
widely  different ;  perhaps  they  may  be ;  whether 
they  are  or  not,  is  foreign  to  my  purpose.  I  am 
not  bound  to  deny  the  possibility  of  answers  to 
such  questions ;  I  am  only  vindicating  the  right  to 
ask  them. 

Gentlemen,  the  author  in  the  other  passage 
which  I  marked  out  to  your  attention  goes  on 
thus:  — "Sir  John  Macpherson,  and  Lord  Corn- 
wallis,  his  successors  in  office,  have  given  the  same 


TRIAL  OF  JOHN  8TOCKDALE.  45 

voluntary  tribute  of  approbation  to  his  measures 
as  Governor-General  of  India.  A  letter  from  the 
former,  dated  the  10th  of  August,  1780,  gives  the 
following  account  of  our  dominions  in  Asia :  'The 
native  inhabitants  of  this  kingdom  are  the  happiest 
and  l>est  protected  subjects  in  India;  our  native 
allies  and  tributaries  confide  in  our  protection  ;  the 
country  powers  are  aspiring  to  the  friendship  of 
the  English:  and  from  the  King  of  Tidore,  towards 
New  Guinea,  to  Timur  Hhaw,  on  the  banks  of  the 
Indus,  there  is  not  a  state  that  has  not  lately  given 
us  proofs  of  confidence  and  respect. ' ' 

Still  pursuing  the  same  test  of  sincerity,  let  us 
examine  this  defensive  allegation. 

Will  the  Attorney-General  say  that  he  does  not 
believe  such  a  letter  from  Lord  Cornwallis  ever 
existed?  No:  for  he  knows  that  it  is  as  authentic 
as  any  document  from  India  upon  the  table  of  the 
House  of  Commons.  What  then  is  the  letter?  The 
native  inhabitants  of  this  kingdom,  says  Lord 
Cornwallis,  writing  from  the  very  spot,  are  the 
happiest  and  best  protected  subjects  in  India,  etc., 
etc.,  etc.  Tbe  inhabitants  of  this  kingdom !  Of 
what  kingdom?  Of  the  very  kingdom  which  Mr. 
Hastings  has  just  returned  from  governing  for 
thirteen  years,  and  for  the  mis-government  and 
desolation  of  which,  he  stands  every  day  as  ft 
criminal,  or  rather  as  a  spectacle,  before  us.  This 
is  matter  for  serious  reflection ;  and  fully  entitles 


46  MR.  ERSKINE'S  SPEECH  ON  THE 

the  author  to  put  the  question,  which  immediately 
follows:  "Does  this  authentic  account  of  the  ad- 
ministration of  Mr.  Hastings,  and  of  the  state  of 
India,  correspond  with  the  gloomy  picture  of  de- 
spair drawn  by  the  committee  of  secrecy?" 

Had  that  picture  been  even  drawn  by  the  House 
of  Commons  itself,  he  would  have  been  fully  justi- 
.fied  in  asking  this  question ;  but  you  observe  it 
has  no  bearing  on  it;  the  last  words  not  only 
entirely  destroy  that  interpretation,  but  also  the 
meaning  of  the  very  next  passage ;  which  is 
selected  by  the  information  as  criminal,  viz : 
"  What  credit  can  we  give  to  multiplied  and  accu- 
mulated charges,  when  we  find  that  they  originate 
from  misrepresentation  and  falsehood?" 

This  passage,  which  is  charged  as  a  libel  on  the 
Commons,  when  thus  compared  with  its  immediate 
antecedent,  can  bear  but  one  construction.  It  is 
impossible  to  contend  that  it  charges  misrepresen- 
tation on  the  House  that  found  the  impeachment, 
but  upon  the  committee  of  secresy  just  before 
adverted  to,  who  were  supposed  to  have  selected 
the  matter,  and  brought  it  before  the  whole  House 
for  judgment. 

I  do  not  mean,  as  I  have  often  told  you,  to  vindi- 
cate any  calumny  on  that  honorable  committee,  or 
upon  any  individual  of  it,  any  more  than  upon  the 
Commons  at  large ;  but  the  defendant  is  not 
charged  by  this  information  with  any  such  offences. 


TRIAL   OF  JOHN   8TOCKDALE.  47 

Let  me  here  pause  once  more  to  ask  you,  whether 
the  book  in  its  genuine  state,  as  far  as  we  have 
advanced  in  it,  makes  the  same  impression  on  your 
minds  now,  as  when  it  was  first  read  to  you  in 
detached  passages ;  and  whether,  if  I  were  to  tear 
off  the  first  part  of  it  which  I  hold  in  my  hand, 
and  give  it  to  you  as  an  entire  work,  the  first  and 
last  passages  which  have  been  selected  as  libels  on 
the  Commons,  would  now  appear  to  be  so,  when 
blended  with  the  interjacent  parts.  I  do  not  ask 
vour  answer.  I  shall  have  it  in  your  verdict. 

*  V 

The  question  is  only  put  to  direct  your  attention 
in  pursuing  the  remainder  of  the  volume  lo  this 
main  point,  is  it  an  honest,  serious  defence  fr  For 
this  purpose,  and  as  example  for  all  others,  I  will 
read  the  author's  entire  answer  to  the  first  article 
of  charge  concerning  Cheit  Sing,  the  Zemindar  of 
Benares,  and  leave  it  to  your  impartial  judgments 
to  determine,  whether  it  be  a  mere  cloak  and  cover 
for  the  slander  imputed  by  the  information  to  the 
concluding  sentence  of  it,  which  is  the  only  jwrt 
attacked ;  or  whether,  on  the  contrary,  that  con- 
clusion itself,  when  embodied  with  what  goes 
before  it,  does  not  stand  explained  and  justified? 

"The  first  article  of  imj>eachment,"  continues 
our  author,  "is  concerning  Cheit  Sing,  the  Zemin- 
dar of  Benares.  Bulwant  Sing,  the  father  of  the 
rajah,  was  merely  an  Ainnil,  or  farmer  and  collec- 
tor of  the  revenues  for  Sujah  id  Dowlah,  nabob  of 


48  ME.  EKSKINE'S  SPEECH  ON  THE 

Oude,  and  vizir  of  the  Mogul  Empire.  When,  on 
the  decease  of  his  father,  Cheit  Sing  was  confirmed 
in  the  office  of  collector  for  the  vizir,  he  paid  200,- 
000  pounds  as  a  gift  or  nuzzeranah,  and  an  addi- 
tional rent  of  30,000  pounds  per  annum. 

"As  the  father  was  no  more  than  an  Aumil,  the 
son  succeeded  only  to  his  rights  and  pretensions. 
But  by  a  sunnud  granted  to  him  by  the  nabob, 
Sujah  Dowlah,  in  September,  1773,  through  the 
influence  of  Mr.  Hastings,  he  acquired  a  legal  title 
to  property  in  the  land,  and  was  raised  from  the 
office  of  Aumil  to  the  rank  of  Zemindar.  About 
four  years  after  the  death  of  Bulwant  Sing,  the 
Governor-General  and  council  of  Bengal  obtained  the 
sovereignty  paramount  of  the  province  of  Benares. 
On  the  transfer  of  this  sovereignty  the  Governor 
and  council  proposed  a  new  grant  to  Cheit  Sing, 
confirming  his  former  privileges,  and  conferring 
upon  him  the  addition  of  the  sovereign  rights  of 
the  mint,  and  powers  of  criminal  justice  with 
regard  to  life  and  death.  He  was  then  recognized 
by  the  company  as  one  of  their  Zemindars';  a 
tributary  subject,  or  feudatory  vassal,  of  the  British 
Empire  in  Indostan.  The  feudal  system,  which 
was  formerly  supposed  to  be  peculiar  to  Our  Gothic 
ancestors,  has  always  prevailed  in  the  East.  In 
every  description  of  that  form  of  government,  not- 
withstanding accidental  variations,  there  are  two 
associations  expressed  or  understood  ;  one  for  inter- 


TRIAL   OF   JOHN   8TOCKDALE.  49 

nal  security,  the  other  for  external  defence.  The 
King  or  nabob,  confers  protection  on  the  feudatory 
baron  as  tributary  prince,  on  condition  of  an 
annual  revenue  in  time  of  peace,  and  of  military 
service,  partly  commutable  for  money,  in  the  time 
of  war.  The  feudal  incidents  in  the  Middle  Ages 
in  Europe,  the  fine  paid  to  the  superior  on  mar- 
riage, wardship,  relief,  etc.,  correspond  to  the 
annual  tribute  in  Asia.  Military  service  in  war, 
and  extraordinary  aids  in  the  event  of  extraordi- 
nary emergencies  were  common  to  both.* 

"When  the  Governor-General  of  Bengal,  in  1778, 
made  an  extraordinary   demand  on  the  Zemindar 

*  "  Notwithstanding  this  analogy,  the  powers  and  privileges  of  a  Zem- 
indar have  never  been  so  well  ascertained  and  defined  as  those  of  a 
baron  in  the  feudal  ages  Though  the  office  has  usually  descended  to 
the  posterity  of  the  Zemindar,  under  the  ceremony  of  fine  and  investi- 
ture, a  material  decrease  in  the  cultivation,  or  decline  in  the  population 
of  the  district,  has  sometimes  been  considered  M  ft  ground  to  dispoMMi 
him.  When  Zemindars  have  fuiled  in  their  engagements  to  the  state, 
though  not  to  the  extent  to  justify  expulsion,  supervisors  have  been  of- 
ten sent  into  the  Zemindaries,  who  have  farmed  out  the  lands,  and  exer- 
cised  authority  under  the  Duannee  laws,  independant  of  the  Zemindar. 
These  circumstances  strongly  mark  their  dependence  on  the  nabob. 
About  a  year  after  the  departure  of  Mr.  Hasting!)  from  India,  the  ques- 
tion concerning  the  rights  of  Zemindars  waa  agitated  at  great  length  in 
Calcutta;  and  after  the  fullest  and  most  accurate  investigation,  the  Uov- 
ernor-General  and  council  gave  it  as  their  deliberate  opinion  to  the 
court  of  directors,  that  the  property  of  the  soil  is  not  in  the  Zemindar, 
but  in  the  government ;  and  that  a  Zemindar  is  merely  an  officer  of  gov- 
ernment appointed  to  collect  its  revenues.  Cheit  Sing  understood  him- 
self to  stand  in  this  predicament.  '  I  am,'  said  he,  on  various «  OCA* ions, 
4  the  servant  of  the  Circnr  (government ),  and  ready  to  obey  your  orders.' 
The  name  and  office  of  Zemindar  ia  not  of  Hindoo,  but  Mogul  institu- 
tion." 

4   B 


50  MR.  ERSKINE'S  SPEECH  ON  THE 

of  Benares,  for  five  lacs  of  rupees,  the  British 
Empire,  in  that  part  of  the  world,  was  surrounded 
with  enemies  which  threatened  its  destruction.  In 
1779,  a  general  confederacy  was  formed  among  the 
great  powers  of  Indostan  for  the  expulsion  of  the 
English  from  their  Asiatic  dominions.  At  this 
crisis  the  expectation  of  a  French  armament  aug- 
mented the  general  calamities  of  the  country.  Mr. 
Hastings  is  charged  by  the  committee  with  mak- 
ing his  first  demand  under  the  false  pretence  that 
hostilities  had  commenced  with  France.  Such  an 
insidious  attempt  to  pervert  a  meritorious  action 
into  a  crime,  is  new,  even  in  the  history  of  impeach- 
ments. On  the  7th  of  July,  1778,  Mr  Hastings 
received  private  intelligence  from  a  merchant  at 
Cairo,  that  war  had  been  declared  by  Great  Britain 
on  the  23rd  of  March,  and  by  France  on  the  30th 
of  April.  Upon  this  intelligence,  considered  -as 
authentic,  it  was  determined  to  attack  all  the 
French  settlements  in  India.  The  information 
was  afterwards  found  to  be  premature ;  but  in  the 
latter  end  of  August  a  secret  despatch  was  received 
from  England  authorizing  and  appointing  Mr. 
Hastings  to  take  the  measures  which  he  had  already 
adopted  in  the  preceding  month.  The  directors 
and  the  board  of  control  have  expressed  their 
approbation  of  this  transaction  by  liberally  reward- 
ing Mr.  Baldwin,  the  merchant,  for  sending  the 
earliest  intelligence  he  could  procure  to  Bengal. 


TRIAL   OF  JOHN  STOCKDALE.  51 

It  was  two  days  after  Mr.  Hastings'  information  of 
the  French  war,  that  he  formed  the  resolution  of 
exacting  the  five  lacs  of  rupee*  from  (licit  Sing, 
and  would  have  made  similar  exaction  from  all  the 
de]x?ndencies  of  the  company  in  India,  had  they 
been  in  the  same  circumstances.  The  fact  is,  that 
the  great  Zemindars  of  Bengal  pay  as  much  to 
government  a-*  their  lands  can  afford.  Chcit 
Sing's  collections  were  above  fifty  lacs,  and  his 
rent  not  twenty-four. 

The  right  of  calling  for  extraordinary  aids  and 
military  service  in  times  of  danger  l>eing  univer- 
sally established  in  India,  as  it  was  formerly  in 
Europe  during  the  feudal  times,  the  subsequent 
conduct  of  Mr.  Hastings  is  explained  and  vindi- 
cated. The  Governor-General  and  council  of  Bengal 
having  made  a  demand  upon  a  tributary  Zemindar 
for  three  successive  years,  and  that  demand  having 
been  resisted  by  their  vassal,  they  are  justified  in 
his  punishment.  The  necessities  of  the  company, 
in  consequence  of  the  critical  situation  of  their 
affairs  in  1781,  calling  for  a  high  fine;  the  ability 
of  the  Zemindar,  who  possessed  near  two  crores 
of  rupees  in  money  and  jewels,  to  pay  the  sum 
required ;  his  backwardness  to  comply  with  the 
demands  of  his  superiors;  his  disaffection  to  the 
English  interest,  and  desire  of  revolt,  which  even 
then  began  to  appear  and  were  afterwards  conspic- 
uous, fully  justify  Mr.  Hastings  in  every  subse- 


52  MK.  ERSKINE'S  SPEECH  ON  THE 

quent  step  of  his  conduct.  In  the  whole  of  his 
proceedings  it  is  manifest  that  he  had  not  early 
formed  a  design  hostile  to  the  Zemindar,  but  was 
regulated  by  events  which  he  could  neither  foresee 
nor  control.  When  the  necessary  measures  which 
he  had  taken  for  supporting  the  authority  of  the 
company,  by  punishing  a  refractory  vassal,  were 
thwarted  and  defeated  by  the  barbarous  massacre 
of  the  British  troops,  and  the  rebellion  of  Cheit 
Sing,  the  appeal  was  made  to  arms,  an  unavoidable 
revolution  took  place  in  Benares,  and  the  Zemindar 
became  the  author  of  his  own  destruction." 

Here  follows  the  concluding  passage,  which  is 
arraigned  by  the  information: 

"The  decision  of  the  House  of  Commons  on  this 
charge  against  Mr.  Hastings,  is  one  of  the  most 
singular  to  be  met  with  in  the  annals  of  Parlia- 
ment. The  minister,  who  was  followed  by  the 
majority,  vindicated  him  in  everything  that  he  had 
done,  and  found  him  blameable  only  for  what  he 
intended  to  do ;  justified  every  step  of  his  conduct, 
and  only  criminated  his  proposed  intention  of  con- 
verting the  crimes  of  the  Zemindar  to  the  benefit 
of  the  state,  by  a  fine  of  fifty  lacs  of  rupees.  An 
impeachment  of  error  in  judgment  with  regard  to 
the  quantum  of  a  fine,  and  for  an  intention  that 
never  was  executed,  and  never  known  to  the  offend- 
ing party,  characterizes  a  tribunal  of  inquisition 
rather  than  a  court  of  Parliament." 


TRIAL   OF  JOHN   STOCK  DALE.  53 

Gentlemen,  I  am  ready  to  admit  that  this  senti- 
ment might  have  been  expressed  in  language  more 
reserved  and  guarded ;  but  you  will  look  to  the 
sentiment  itself,  rather  than  to  its  dress;  to  the 
mind  of  the  writer,  and  not  to  the  bluntness  with 
which  he  may  happen  to  express  it  It  is  obviously 
the  language  of  a  warm  man,  engaged  in  the  honest 
defence  of  his  friend,  and  who  is  brought  to  what 
he  thinks  a  just  conclusion  in  argument,  which 
perhaps  becomes  offensive  in  proi>orrion  to  its 
truth.  Truth  is  undoubtedly  no  warrant  for  writ- 
ing what  is  reproachful  of  any  private  man.  If  a 
member  of  society  lives  within  the  law,  then,  if  he 
offends,  it  is  against  God  alone,  and  man  has  noth- 
ing to  do  with  him  ;  and  if  he  transgress  the  laws, 
the  libeler  should  arraign  him  before  them,  instead 
of  presuming  to  try  him  himself;  but  as  to  writings 
on  general  subjects,  which  are  not  charged  as  an 
infringement  on  the  rights  of  individuals,  but  as 
of  a  seditious  tendency,  it  is  far  otherwise.  When, 
in  the  progress  either  of  legislation,  or  of  high 
national  justice  in  Parliament,  they,  who  are  amen- 
able to  no  law,  are  supposed  to  have  adopted 
through  mistake  or  error  a  principle  which,  if 
drawn  into  precedent,  might  be  dangerous  to  the 
public,  I  shall  not  admit  it  to  be  a  libel  in  the 
course  of  a  legal  and  bonafidc  publication,  to  state 
that  such  a  principle  had  in  fact  been  adopted. 
The  people  of  England  are  not  to  be  kept  in  the 


54  ME.  ERSKINE'S  SPEECH  ON  THE 

dark  touching  the  proceedings  of  their  own  repre- 
sentatives. Let  us  therefore  coolly  examine  this 
supposed  offence,  and  see  what  it  amounts  to. 

First,  was  not  the  conduct  of  the  right  honorable 
gentleman,  whose  name  is  here  mentioned,  exactly 
what  it  is  represented  ?  Will  the  Attorney-General, 
who  was  present  in  the  House  of  Commons,  say  that 
it  was  not?  Did  not  the  minister  vindicate  Mr. 
Hastings  in  what  he  had  done,  and  was  not  his 
consent  to  that  article  of  the  impeachment  founded 
on  the  intention  only  of  levying  a  fine  on  the 
Zemindar  for  the  service  of  the  state,  beyond  the 
quantum  which  he,  the  minister,  thought  reasona- 
ble? What  else  is  this  but  an  impeachment  of 
error  in  judgment  in  the  quantum  of  a  fine? 

So  much  for  the  first  part  of  the  sentence,  which, 
regarding  Mr.  Pitt  only,  is  foreign  to  our  purpose; 
and  as  to  the  last  part  of  it,  which  imputes  the 
sentiments  of  the  minister  to  the  majority  that 
followed  him  with  their  votes  on  the  question,  that 
appears  to  me  to  be  giving  handsome  credit  to 
the  majority  for  having  voted  from  conviction, 
and  not  from  courtesy  to  the  minister.  To  have 
supposed  otherwise,  I  dare  not  say,  would  have 
been  a  more  natural  libel,  but  it  would  certainly 
have  been  a  greater  one.  The  sum  and  substance, 
therefore,  of  the  paragraph,  is  only  this :  that  an 
impeachment  for  error  in  judgment  is  not  consistent 
with  the  theory  or  the  practice  of  the  English  gov- 


TRIAL   OF  JOHN  STOCK  DALE.  OO 

eminent.  So  say  I.  I  say,  without  reserve,  speak- 
ing merely  in  the  abstract,  and  not  meaning  to 
decide  upon  the  merits  of  Mr.  Hasting'**  cause, 
that  an  impeachment  for  an  error  in  judgment  is 
contrary  to  the  whole  spirit  of  English  criminal 
justice,  which,  though  not  binding  on  the  House  of 
Commons,  ought  to  be  a  guide  to  its  proceedings. 
I  say  that  the  extraordinary  jurisdiction  of  im- 
peachment ought  never  to  be  assumed  to  expose 
error,  or  to  scourge  misfortune,  but  to  hold  up  a 
terrible  example  to  corruption  and  wilful  abuse 
of  authority  by  extra  legal  pains.  If  public  men 
are  always  punished  with  due  severity,  when  the 
source  of  their  misconduct  apj>ears  to  have  been 
selfishly  corrupt  and  criminal,  the  public  can  never 
suffer  when  their  errors  are  treated  with  gentle- 
ness. From  such  protection  to  the  magistrate,  no 
man  can  think  lightly  of  the  charge  of  magistracy 
itself,  when  he  sees,  by  the  language  of  the  saving 
judgment,  that  the  only  title  to  it  is  an  honest  and 
zealous  intention.  If  at  this  moment,  gentlemen, 
or  indeed  in  any  other  in  the  whole  course  of  our 
history,  the  }>eople  of  England  were  to  call  uj>on 
every  man  in  this  impeaching  House  of  Commons, 
who  had  given  his  voice  on  public  questions,  or 
acted  in  authority  civil  or  military,  to  answer  for 
the  issues  of  our  councils  and  our  wars,  and  if 
honest  single  intentions  for  the  public  service  were 
refused  as  answers  to  impeachments  we  should 


56  ME.  ERSKINE'S  SPEECH  ON  THE 

have  many  relations  to  mourn  for,  and  many  friends 
to  deplore.  For  my  own  part,  gentlemen,  I  feel, 
I  hope,  for  my  country  as  much  as  any  man  that 
inhabits  it ;  but  I  would  rather  see  it  fall,  and  be 
buried  in  its  ruins,  than  lend  my  voice  to  wound 
any  minister,  or  other  responsible  person,  however 
unfortunate,  who  had  fairly  followed  the  lights  of 
his  understanding  and  the  dictates  of  his  conscience 
for  its  preservation. 

Gentlemen,  this  is  no  theory  of  mine ;  it  is  the 
language  of  English  law,  and  the  protection  which 
it  affords  to  every  man  in  office,  from  the  highest 
to  the  lowest  trust  of  government.  In  no  one  in- 
stance that  can  be  named,  foreign  and  domestic, 
did  the  Court  of  King's  Bench  ever  interpose  its 
extraordinary  jurisdiction,  by  information,  against 
any  magistrate  for  the  widest  departure  from  the 
rule  of  his  duty,  without  the  plainest  and  clearest 
proof  of  corruption.  To  every  such  application, 
not  so  supported,  the  constant  answer  has  been, 
Go  to  a  grand  jury  with  your  complaint.  God 
forbid  that  a  magistrate  should  suffer  from  an  error 
in  judgment,  if  his  purpose  was  honestly  to  dis- 
charge his  trust.  We  cannot  stop  the  ordinary 
course  of  justice;  but  wherever  the  court  has  a 
discretion,  such  a  magistrate  is  entitled  to  its  pro- 
tection. I  appeal  to  the  noble  judge,  and  to  every 
man  who  hears  me,  for  the  truth  and  universality 
of  this  position ;  and  it  would  be  a  strange  solecism 


TRIAL  OF  JOHN  8TOCKDALE.  57 

indeed  to  assert,  that  in  a  case  where  the  Supreme 
Court  of  criminal  justice  in  the  nation  would  refuse 
to  interpose  an  extraordinary  though  a  legal  juris- 
diction, on  the  principle  that  the  ordinary  execution 
of  the  laws  should  never  be  exceeded,  hut  for  the 
punishment  of  malignant  guilt,  the  Commons,  in 
their  higher  capacity,  growing  out  of  the  same 
constitution,  should  reject  that  principle,  and  stretch 
their  prerogative  yet  further  hy  a  jurisdiction  still 
more  eccentric.  Many  impeachments  have  taken 
place,  because  the  law  could  not  adequately  punish 
the  objects  of  them ;  but  who  ever  heard  of  one  being 
set  on  foot  because  the  law  upon  principle  would 
not  punish  them?  Many  impeachments  have  been 
adopted  for  a  higher  example  than  a  prosecution 
in  the  ordinary  courts,  but  surely  never  for  a  dif- 
ferent example.  The  matter,  therefore,  in  the 
offensive  paragraph,  is  not  only  an  indisputable 
truth,  but  a  truth,  in  the  propagation  of  which  we 
are  all  deeply  concerned. 

Whether  Mr.  Hastings,  in  the  particular  instance, 
acted  from  corruption  or  from  zeal  for  his  em- 
ployers, is  what  1  have  nothing  to  do  with ;  it  is 
to  be  decided  in  judgment;  my  duty  stops  with 
wishing  him,  as  I  do,  an  honorable  deliverance. 
Whether  the  minister  or  the  Commons  meant  to 
found  this  article  of  the  impeachment,  on  mere 
error  without  corruption,  is  likewise  foreign  to  the 
purpose.  The  author  could  only  judge  from  what 


58  ME.  EKSKINE'S  SPEECH  ON  THE 

was  said  and  done  on  the  occasion.  He  only 
sought  to  guard  the  principle,  which  is  a  common 
interest,  and  the  rights  of  Mr.  Hastings  under  it. 
He  was  therefore  justified  in  publishing  that  an 
impeachment  founded  in  error  in  judgment  was  to 
all  intents  and  purposes  illegal,  unconstitutional, 
and  unjust. 

Gentlemen,  it  is  now  time  for  us  to  return  a^ain 

o 

•to  the  work  under  examination.  The  author,  hav- 
ing discussed  the  whole  of  the  first  article  through 
so  many  pages,  without  even  the  imputation  of  an 
incorrect  or  intemperate  expression,  except  in  the 
concluding  passage  (the  meaning  of  which  I  trust 
I  have  explained),  goes  on  with  the  same  earnest 
disposition  to  the  discussion  of  the  second  charge 
respecting  the  Princesses  of  Oude,  which  occupies 
eighteen  pages,  not  one  syllable  of  which  the 
Attorney-General  has  read,  and  in  which  there  is 
not  even  a  glance  at  the  House  of  Commons.  The 
whole  of  this  answer  is  indeed  so  far  from  being  a 
mere  cloak  for  the  introduction  of  slander,  that  I 
aver  it  to  be  one  of  the  most  masterly  pieces  of 
writing  I  ever  read  in  my  life.  From  thence  he 
goes  on  to  the  charge  of  contracts  and  salaries, 
which  occupies  five  pages  more,  in  which  there  is 
not  a  glance  at  the  House  of  Commons,  nor  a  word 
read  by  the  Attorney-General.  He  afterwards  de- 
fends Mr.  Hastings  against  the  charges  respecting 
the  opium  contract.  Not  a  glance  at  the  House 


TRIAL   OF   JOHX   STOCKDALE.  50 

of  Commons ;  not  a  word  by  the  Attorney-General ; 
ami,  in  short,  in  this  manner  lie  goes  on  with  the 
others  to  the  end  of  the  book. 

Now  is  it  possible  for  any  human  being  to  believe 
that  a  man  having  no  other  intention  than  to  vilify 
the  House  of  Commons,  as  this  information  charges, 
should  yet  keep  his  mind  thus  fixed  and  settled  as 
the  needle  to  the  pole,  upon  the  serious  merits  of 
Mr.  Hastings'  defence,  without  ever  straying  into 
matter  even  questionable,  except  in  the  two  or  three 
selected  parts  out  of  two  or  three  hundred  pages  ? 
This  is  a  forbearance  which  could  not  have  existed, 
if  calumny  and  detraction  had  been  the  malignant 
objects  which  led  him  to  the  inquiry  and  publica- 
tion. The  whole  fallacy,  therefore,  arises  from 
holding  up  to  view  a  few  detached  passages,  and 
carefully  concealing  the  general  tenor  of  the  book. 
Having  now  finished  most,  if  not  all  of  these  crit- 
ical observations,  which  it  has  been  my  duty  to 
make  upon  this  unfair  mode  of  prosecution ;  it  is 
but  a  tribute  of  common  justice  to  the  Attorney- 
General,  and  which  my  personal  regard  for  him 
makes  it  more  pleasant  to  pay,  that  none  of  my 
commentaries  reflect  in  the  most  distant  manner 
upon  him ;  nor  upon  the  solicitor  for  the  Crown, 
who  sits  near  me,  who  is  a  person  of  the  most  cor- 
rect honor ;  far  from  it.  The  Attorney-General 
having  orders  to  prosecute,  in  consequence  of  the 
address  of  the  House  to  his  Majesty,  had  no  choice 


60  ME.  ERSKINE'S  SPEECH  ON  THE 

in  the  mode;  no  means  at  all  of  keeping  the  pros- 
ecutors before  you  in  countenance,  but  by  the 
course  which  has  been  pursued ;  but  so  far  has  he 
been  from  enlisting  into  the  cause  those  prejudices 
which  it  is  not  difficult  to  slide  into  a  business 
originating  from  such  exalted  authority,  he  has 
honorably  guarded  you  against  them;  pressing 
indeed  severely  upon  my  client  with  the  weight  of 
his  ability,  but  not  with  the  glare  and  trappings 
of  high  office. 

Gentlemen,  I  wish  that  my  strength  would 
enable  me  to  convince  you  of  the  author's  single- 
ness of  intention,  and  of  the  merit  and  ability  of 
his  work,  by  reading  the  whole  that  remains  of  it. 
But  my  voice  is  already  nearly  exhausted ;  I  ani 
sorry  my  client  should  be  a  sufferer  by  my  infirm- 
ity. One  passage,  however,  is  too  striking  and 
important  to  be  passed  over ;  the  rest  I  must  trust 
to  your  private  examination.  The  author  having 
discussed  all  the  charges,  article  by  article,  sums 
them  all  up  with  this  striking  appeal  to  his 
readers : 

"The  authentic  statement  of  facts  which  has 
been  given,  and  the  arguments  which  have  been 
employed,  are,  I  think,  sufficient  to  vindicate  the 
character  and  conduct  of  Mr.  Hastings,  even  on 
the  maxims  of  European  policy.  When  he  was 
appointed  Governor-General  of  Bengal,  he  was 
invested  with  a  discretionary  power  to  promote 


TRIAL  OF  JOHN   8TOCKDALE.  Gl 

the  interests  of  the  India  company,  and  of  the 
British  Empire  in  that  quarter  of  the  globe.  The 
general  instructions  sent  to  him  from  his  constitu- 
ents were,  '  That  in  all  your  deliberations  and  reso- 
lutions, you  make  the  safety  and  prosperity  of 
Bengal  your  principal  object,  and  fix  your  atten- 
tion on  the  security  of  the  possessions  and  revenues 
of  the  company.'  His  suj)erior  genius  sometimes 
acted  in  the  spirit,  rather  than  complied  with  the 
letter,  of  the  law ;  but  he  discharged  the  trust,  and 
preserved  the  Empire  committed  to  his  care,  in  the 
same  way,  and  with  greater  splendor  and  success 
than  any  of  his  predecessors  in  office ;  his  depart- 
ure from  India  was  marked  with  the  lamentations 
of  the  natives,  and  the  gratitude  of  his  country- 
men ;  and  on  his  return  to  England,  he  received 
the  cordial  congratulations  of  that  numerous  and 
respectable  society,  whose  interests  he  had  pro- 
moted, and  whose  dominions  he  had  protected  and 
extended." 

Gentlemen  of  the  jury,  if  this  be  a  wilfully  false 
account  of  the  instructions  given  to  Mr.  Hastings 
for  his  government,  and  his  conduct  under  them, 
the  author  and  publisher  of  this  defence  deserve 
the  severest  punishment,  for  a  mercenary  imposi- 
tion on  the  public.  But  if  it  be  true  that  he  was 
directed  to  make  the  safety  and  prosperity  of  Ben- 
gal the  first  object  of  his  attention,  and  that,  under 
his  administration,  it  has  been  safe  and  prosperous  ; 


62  ME.  ERSKINE'S  SPEECH  ON  THE 

if  it  be  true  that  the  security  and  preservation  of 
our  possessions  and  revenues  in  Asia  were  marked 
out  to  him  as  the  great  leading  principle  of  his 
government,  and  that  those  possessions  and  reve- 
nues, amidst  unexampled  dangers,  have  been 
secured  and  preserved ;  then  a  question  may  be 
unaccountably  mixed  with  your  consideration,  much 
beyond  the  consequence  of  the  present  prosecution, 
involving,  perhaps,  the  merit  of  the  impeachment 
itself  which  gave  it  birth ;  a  question  which  the 
Commons,  as  prosecutors  of  Mr.  Hastings,  should  in 
common  prudence  have  avoided ;  unless  regretting 
the  unwieldy  length  of  their  proceedings  against 
him,  they  wished  to  afford  him  the  opportunity  of 
this  strange  anomalous  defence ;  since,  although  I 
am  neither  his  counsel,  nor  desire  to  have  anything 
to  do  with  his  guilt  or  innocence ;  yet,  in  the  col- 
lateral defence  of  my  client,  I  am  driven  to  state 
matter  which  may  be  considered  by  many  as 
hostile  to  the  impeachment ;  for  if  our  dependen- 
cies have  been  secured,  and  their  interests  pro- 
moted, I  am  driven  in  the  defence  of  my  client  to 
remark,  that  it  is  mad  and  preposterous  to  bring 
to  the  standard  of  justice  and  humanity,  the  exer- 
cise of  a  dominion  founded  upon  violence  and  ter- 
ror. It  may,  and  must  be  true,  that  Mr.  Hastings 
has  repeatedly  offended  against  the  rights  and 
privileges  of  the  Asiatic  government,  if  he  was  a 
faithful  deputy  of  a  power  which  could  not  main- 


TRIAL   OF  JOHN   8TOCKDALE.  G3 

tain  itself  for  an  hour  without  trampling  upon 
l)0th ;  he  may  and  must  have  offended  against  the 
laws  of  God  and  nature,  if  he  was  the  faithful  vice- 
roy of  an  Empire  wrested  in  Mood  from  the  people 
to  whom  God  and  nature  had  given  it ;  he  may  and 
must  have  preserved  that  unjust  dominion  over 
timorous  and  abject  nations  by  a  terrifying,  over- 
bearing, insulting  superiority,  if  he  was  the  faith- 
ful administrator  of  your  government,  which  hav- 
ing no  root  in  consent  or  affection,  no  foundation 
in  similarity  of  interests,  nor  support  from  any  one 
principle  which  cements  men  together  in  society, 
could  only  be  upheld  by  alternate  stratagem  and 
force.  The  unhappy  people  of  India,  feeble  and 
effeminate  as  they  are  from  the  softness  of  their 
climate,  and  subdued  and  broken  as  they  have 
been  by  the  knavery  and  strength  of  civilization, 
still  occasionally  start  up  in  all  the  vigor  and  intel- 
ligence of  insulted  nature ;  to  be  governed  at  all, 
they  must  be  governed  with  a  rod  of  iron  ;  and  our 
Empire  in  the  East  would,  long  since,  have  been 
lost  to  Great  Britain,  if  civil  skill  and  military 
prowess  had  not  united  their  efforts  to  sup|>ort  an 
authority  which  Heaven  never  gave,  by  means 
which  it  never  can  sanction. 

Gentlemen,  I  think  I  can  observe  that  you  are 
touched  with  this  way  of  considering  the  subject, 
and  I  can  account  for  it.  I  have  not  been  con- 
sidering it  through  the  cold  medium  of  books,  but 


64  ME.  EESKINE'S  SPEECH  ON  THE 

have  been  speaking  of  man  and  Iris  nature,  and  of 
human  dominion,  from  what  I  have  seen  of  them 
myself  amongst  reluctant  nations  submitting  to 
our  authority.  I  know  what  they  feel,  and  how 
such  feelings  can  alone  be  repressed.  I  have  heard 
them  in  my  youth  from  a  naked  savage,  in  the 
indignant  character  of  a  prince  surrounded  by  his 
subjects,  addressing  the  governor  of  a  British 
colony,  holding  a  bundle  of  sticks  in  his  hand,  as  the 
notes  of  his  unlettered  eloquence :  "  Who  is  it  ?  " 
said  the  jealous  ruler  over  the  desert,  encroached 
upon  by  the  restless  foot  of  English  adventure, 
"who  is  it  that  causes  this  river  to  rise  in  the  high 
mountains,  and  to  empty  itself  into  the  ocean? 
Who  is  it  that  causes  to  blow  the  loud  winds  of 
winter,  and  that  calms  them  again  in  the  summer  ? 
Who  is  it  that  rears  up  the  shade  of  these  lofty 
forests,  and  blasts  them  with  the  quick  lightning 
at  his  pleasure  ?  The  same  Being  who  gave  to 
you  a  country  on  the  other  side  of  the  waters,  and 
gave  ours  to  us;  and  by  this  title  we  will  defend 
it,"  said  the  warrior,  throwing  down  his  tomahawk 
upon  the  ground,  and  raising  the  war-sound  of  his 
nation.  These  are  the  feelings  of  subjugated  man  all 
round  the  globe;  and  depend  upon  it,  nothing  but 
fear  will  control  where  it  is  vain  to  look  for  affection.* 

*The  effect  of  this  inimitable  passage  on  all  present,  is  said  by  an 
eye  witness  to  have  been  electrical.  The  audience  was  stirred  as  one 
man ;  they  seemed  to  see  the  Indian  chieftain  before  them  and  to 
drink  in  the  entire  scene  as  depicted  by  the  matchless  skill  of  the 
advocate. 


TRIAL  OF  JOIIN   BTOCKDALE.  G5 

These  reflections  are  the  only  antidotes  to  those 
anathemas  of  super-human  eloquence  which  have 
lately  shaken  the  walls  that  surround  us ;  but 
which  it  unaccountably  falls  to  my  province, 
whether  I  will  or  no,  a  little  to  stem  the  torrent 
of,  by  reminding  you  that  you  have  a  mighty  sway 
in  Asia  which  cannot  be  maintained  by  the  finer 
sympathies  of  life,  or  the  practice  of  its  charities 
and  affections;  what  will  they  do  for  you  when 
surrounded  by  two  hundred  thousand  men,  with 
artillery,  cavalry,  and  elephants,  calling  uj>on  you 
for  their  dominions  which  you  have  robbed  them 
of?  Justice  may,  no  doubt,  in  such  a  case  forbid 
the  levying  of  a  fine  to  pay  revolting  soldiery ;  a 
treaty  may  stand  in  the  way  of  increasing  a  tribute 
to  keep  up  the  very  existence  of  the  government ; 
and  delicacy  for  women  may  forbid  all  entrance 
into  a  Zenana  for  money,  whatever  may  be  the 
necessity  for  taking  it.  All  these  things  must  ever 
be  occurring.  But  under  the  pressure  of  such  con- 
stant difficulties,  so  dangerous  to  national  honor, 
it  might  be  better,  perhaps,  to  think  of  effectually 
securing  it  altogether,  by  recalling  our  troojw  and 
our  merchants,  and  abandoning  our  Oriental  Em- 
pire. Until  this  be  done,  neither  religion  nor 
philosophy  can  be  pressed  very  far  into  the  aid 
of  reformation  and  punishment  If  England,  from 
a  lust  of  ambition  and  dominion,  will  insist  on 
maintaining  despotic  rule  over  distant  and  hostile 

5   B 


G6  MR.  EESKINE'S  SPEECH  ON  THE 

nations,  beyond  all  comparison  more  numerous 
and  extended  than  herself,  and  gives  commission 
to  her  viceroys  to  govern  them  with  no  other 
instructions  than  to  preserve  them,  and  to  secure 
permanently  their  revenues  ;  with  what  color  of 
consistency  or  reason  can  she  place  herself  in  the 
moral  chair,  and  affect  to  be  shocked  at  the  execu- 
tion of  her  own  orders ;  adverting  to  the  exact 
measure  of  wickedness  .and  injustice  necessary  to 
their  execution,  and  complaining  only  of  the  excess 
as  the  immorality,  considering  her  authority  as  a 
dispensation  for  breaking  the  commands  of  God, 
and  the  breach  of  them  as  only  punishable  when 
contrary  to  ordinances  of  man. 

Such  a  proceeding,  gentlemen,  begets  serious 
reflections.  It  would  be  better  perhaps  for  the 
masters  and  the  servants  of  all  such  governments 
to  join  in  supplication,  that  the  great  Author  of 
violated  humanity  may  not  confound  them  together 
in  one  common  judgment. 

Gentlemen,  I  find,  as  I  said  before,  I  have  not 
sufficient  strength  to  go  on  with  the  remaining 
parts  of  the  book.*  I  hope,  however,  that  notwith- 
standing my  omissions,  you  are  now  completely 
satisfied  that  whatever  errors  or  misconceptions 
may  have  misled  the  writer  of  these  pages,  the 
justification  of  a  person  whom  he  believed  to  be 
innocent,  and  whose  accusers  had  themselves  ap- 

*Lord   Erskine   was   now   so   ill   that  he   could   scarcely   stand  up 
while  he  addressed  the  jury. 


TRIAL   OF   JOHN   8TOCKDALE.  C7 

pealed  to  the  public,  was  tlie  single  object  of  his 
contemplation.  It'  I  have  succeeded  in  that  object, 
every  purjxise  which  I  had  in  addressing  yon  has 
been  answered. 

Itonlv  now  remains  to  remind  von,  that  another 

*  * 

consideration  has  been  strongly  pressed  upon  yon, 
and,  no  doubt,  will  be  insisted  on  in  reply.  You 
will  be  told  that  the  matters  which  I  have  been 
justifying  as  legal,  and  even  meritorious,  have 
therefore  not  been  made  the  subject  of  complaint; 
and  that  whatever  intrinsic  merit  jnirts  of  the  book 
may  be  supposed  or  even  admitted  to  j>ossess,  such 
merit  can  afford  no  justification  to  the  selected 
passages,  some  of  which,  even  with  the  context, 
carry  the  meaning  charged  by  the  information,  and 
which  are  indecent  animadversions  on  authority. 

IP 

To  this  I  would  answer,  still  protesting  as  I  do 
against  the  application  of  any  one  of  the  innuen- 
does, that  if  you  are  firmly  persuaded  of  the  single- 
ness and  purity  of  the  author's  intentions,  you  are 
not  bound  to  subject  him  to  infamy,  because,  in 
the  zealous  career  of  a  just  and  animated  composi- 
tion, he  happens  to  have  tripped  with  his  jxm  into 
an  intem|>erate  expression  in  one  or  two  instances 
of  a  long  work.  If  this  severe  duty  were  binding 
on  your  consciences,  the  liberty  of  the  press  would 
be  an  empty  sound,  and  no  man  could  venture  to 
write  on  any  subject,  however  pure  his  puri>ose, 


68  ME.  ERSKINE'S  SPEECH  ON  THE 

without  an  attorney  at  one  elbow,  and  a  counsel  at 
the  other. 

From  minds  thus  subdued  by  the  terrors  of 
punishment,  there  could  issue  no  works  of  genius 
to  expand  the  empire  of  human  reason,  nor  any 
masterly  compositions  on  the  general  nature  of 
government,  by  the  help  of  which  the  great  com- 
monwealths of  mankind  have  founded  their  estab- 
lishments ;  much  less  any  of  those  useful  applica- 
tions of  them  to  critical  conjunctures  by  which, 
from  time  to  time,  our  own  constitution,  by  the 
exertion  of  patriot  citizens,  has  been  brought  back 
to  its  standard.  Under  such  terrors,  all  the  great 
lights  of  science  and  civilization  must  be  extin- 
guished, for  men  cannot  communicate  their  free 
thoughts  to  one  another  with  a  lash  held  over  their 
heads.  It  is  the  nature  of  everything  that  is  great 
and  useful,  both  in  the  animate  and  inanimate 
world,  to  be  wild  and  irregular ;  and  we  must  be 
contented  to  take  them  with  the  alloys  which 
belong  to  them,  or  live  without  them.  Genius 

O  ' 

breaks  from  the  fetters  of  criticism,  but  its  wan- 
derings are  sanctioned  by  its  majesty  and  wisdom, 
when  it  advances  in  its  path;  subject  it  to  the 
critic,  and  you  tame  it  into  dullness.  Mighty  rivers 
break  down  their  banks  in  the  winter,  sweeping 
away  to  death  the  flocks  which  are  fattened  on  the 
soil  that  they  fertilize  in  the  summer ;  the  few  may 
be  saved  by  embankments  from  drowning,  but  the 


TRIAL   OF  JOHN   STOCKDALE.  G9 

flock  must  perish  from  hunger.  Tempests  occa- 
sionally shake  our  dwellings  and  dissipate  our 
commerce;  but  they  scourge  before  them  the  lazy 
elements,  which  without  them  would  stagnate  into 
pestilence.  In  like  manner,  liberty  herself,  the  last 
and  best  gift  of  God  to  his  creatures,  must  betaken 
just  as  she  is  ;  you  might  pare  her  down  into  bash- 
ful regularity,  and  shaj>e  her  into  a  perfect  model 
of  severe,  scrupulous  law,  but  she  would  then  be 
liberty  no  longer ;  and  you  must  be  content  to  die 
under  the  lash  of  this  inexorable  justice  which  you 
had  exchanged  for  the  banners  of  freedom. 

If  it  be  asked  where  the  line  to  this  indulgence 
and  impunity  is  to  be  drawn,  the  answer  is  easy. 
The  liberty  of  the  press  on  general  subjects  com- 
prehends and  implies  as  much  strict  observance  of 
positive  law  as  is  consistent  with  perfect  purity  of 
intention,  and  equal  and  useful  society ;  and  what 
that  latitude  is,-  cannot  be  promulgated  in  the 
abstract,  but  must  be  judged  of  in  the  particular 
instance,  and  consequently,  upon  this  occasion, 
must  be  judged  of  by  you,  without  forming  any 
possible  precedent  for  any  other  case.  And  where 
can  the  judgment  be  possibly  so  safe  as  with  the 
members  of  that  society  which  alone  can  suffer  if 
the  writing  is  calculated  to  do  mischief  to  the 
public?  You  must  therefore  try  the  book  by  that 
criterion,  and  say  whether  the  publication  was  pre- 
mature and  offensive,  or,  in  other  words,  whether 


70  MR.  EESKINE'S  SPEECH  ON  THE 

the  publisher  was  bound  to  have  suppressed  it 
until  the  public  ear  was  anticipated  and  abused, 
and  every  avenue  to  the  human  heart  and  under- 
standing secured  and  blocked  up  ?  I  see  around 
me  those  by  whom,  by  and  by,  Mr.  Hastings  will 
be  most  ably  and  eloquently  defended ;  *  but  I  am 
sorry  to  remind  my  friends,  that  but  for  the  right 
of  suspending  the  public  judgment  concerning 
him  till  their  season  of  exertion  comes  round,  the 
tongues  of  angels  would  be  insufficient  for  the 
task. 

Gentlemen,  I  hope  I  have  now  performed  my 
duty  to  my  client.  I  sincerely  hope  that  I  have ; 
for,  certainly,  if  ever  there  was  a  man  pulled  the 
other  way  by  his  interests  and  affections ;  if  ever 
there  was  a  man  who  should  have  trembled  at  the 
situation  in  which  I  have  been  placed  on  this  occa- 
sion, it  is  myself,  who  not  only  love,  honor  and 
respect,  but  whose  future  hopes  and  preferments 
are  linked  from  free  choice  with  those  who,  from 
the  mistakes  of  the  author,  are  treated  with  great 
severity  and  injustice.  These  are  strong  retard- 
ments ;  but  I  have  been  urged  on  to  activity  by 
considerations  which  can  never  be  inconsistent  with 
honorable  attachments,  either  in  the  political  or 
social  world  ;  the  love  of  justice  and  of  liberty,  and 
a  zeal  for  the  constitution  of  my  country,  which  is 
the  inheritance  of  our  posterity,  of  the  public,  and 

*Mr.  Law,  afterward  Lord  Ellenborough,  Mr.  Plumer,  afterward 
vice-chancellor,  and  Mr.  Dallas. 


TRIAL  OF  JOHN  STOCK  DALE.  71 

of  the  world.  These  are  the  motives  which  have 
animated  me  in  defence  of  this  person,  who  is  an 
entire  stranger  to  me ;  whose  shop  I  never  go  to ; 
and  the  author  of  whose  publication,  as  well  as 
Mr.  Hastings,  who  is  the  object  of  it,  I  never  sj>oke 
to  in  my  life. 

One  word  more,  gentlemen,  and  I  have  done. 
Every  human  tribunal  ought  to  take  care  to  ad- 
minister justice,  as  we  look  hereafter  to  have  justice 
administered  to  ourselves.  U|>on  the  principle  on 
which  the  Attorney-General  prays  sentence  upon 
my  client — God  have  mercy  upon  us!  Instead 
of  standing  before  him  in  judgment  with  the  hoj)es 
and  consolations  of  Christians,  we  must  call  upon 
the  mountains  to  cover  us;  for  which  of  as  can 
present,  for  omniscient  examination,  a  pure,  un- 
spotted and  faultless  course?  But  I  humbly  ex- 
pect that  die  benevolent  Author  of  our  being  will 
judge  us  as  I  have  been  jiointing  out  for  your 
example.  Holding  up  the  great  volume  of  our 
lives  in  his  hands,  and  regarding  the  general  scope 
of  them,  if  he  discovers  benevolence,  charity,  and 
good-will  to  man  beating  in  the  heart,  where  he 
alone  can  look;  if  he  finds  that  our  conduct,  though 
often  forced  out  of  the  path  by  our  infirmities,  has 
been  in  general  well  directed,  his  all-searching  eye 
will  assuredly  never  pursue  us  in  those  little  cor- 
ners of  our  lives,  much  less  will  his  justice  select 
them  for  punishment,  without  the  general  context 


72  MR.  EBSKINE'S  SPEECH  ON  THE 

of  our  existence,  by  which  faults  may  be  sometimes 
found  to  have  grown  out  of  virtues,  and  very  many 
of  our  heaviest  offences  to  have  been  grafted  by 
human  imperfections  upon  the  best  and  kindest  of 
our  affections.  '  No,  gentlemen,  believe  me,  this  is 
not  the  course  of  divine  justice,  or  there  is  no  truth 
in  the  Gospels  of  Heaven.  If  the  general  tenor  of 
a  man's  conduct  be  such  as  I  have  represented  it, 
he  may  walk  through  the  shadow  of  death,  with 
all  his  faults  about  him,  with  as  much  cheerfulness 
as  in  the  common  paths  of  life ;  because  he  knows, 
that  instead  of  a  stern  accuser  to  expose  before  the 
Author  of  his  nature  those  frail  passages  which, 
like  the  scored  matter  in  the  book  before  you, 
chequer  the  volume  of  the  brightest  and  best-spent 
life,  his  mercy  will  obscure  them  from  the  eye  of  his 
purity,  and  our  repentance  blot  them  out  forever. 
All  this  would,  I  admit,  be  perfectly  foreign  and 
irrelevant,  if  you  were  sitting  here  in  a  case  of  pro- 
perty between  man  and  man,  where  a  strict  rule 
of  law  must  operate,  or  there  would  be  an  end  of 
civil  life  and  society.  It  would  be  equally  foreign, 
and  still  more  irrelevant,  if  applied  to  those  shame- 
ful attacks  .upon  private  reputation  which  are  the 
bane  and  disgrace  of  the  press ;  by  which  whole 
families  have  been  rendered  unhappy  during  life, 
by  aspersions  cruel,  scandalous,  and  unjust.  Let 
such  libelers  remember,  that  no  one  of  my  princi- 
ples of  defence  can  at  any  time  or  upon  any  occa- 


TRIAL  OF   JOHN  8TOCKDALE.  73 

8ion  ever  apply  to  shield  them  from  punishment ; 
because  such  conduct  is  not  only  an  infringement 
on  the  rights  of  men,  as  they  are  defined  by  strict 
law,  but  is  absolutely  incom{)atible  with  honor, 
honesty,  or  mistaken  good  intention.  On  such 
men  let  the  Attorney-General  bring  forth  all  the 
artillery  of  his  office,  and  the  thanks  and  blessings 
of  the  whole  public  will  follow  him.  But  this  is  a 
totally  different  case.  Whatever  private  calumny 
may  mark  this  work,  it  has  not  been  made  the 
subject  of  complaint,  and  we  have  therefore  noth- 
ing to  do  with  that,  nor  any  right  to  consider  it. 
We  are  trying  whether  the  public  could  have  been 
considered  as  offended  and  endangered,  if  Mr. 
Hastings  himself,  in  whose  place  the  author  and 
publisher  have  a  right  to  put  themselves,  had, 
under  all  the  circumstances  which  have  l>een  con- 
sidered, composed  and  published  the  volume  under 
examination.  That  question  cannot,  in  common 
sense,  be  anything  resembling  a  question  of  law, 
but  is  a  pure  question  of  fact,  to  be  decided  on  the 
principles  I  have  humbly  recommended.  I  there- 
fore ask  of  the  court  that  the  book  itself  may  now 
be  delivered  to  you.  Read  it  with  attention,  and 
as  you  shall  find  it,  pronounce  your  verdict.* 

*  Mr.  Erskinc's  argument  in  this  celebrated  cause  may  be  consid- 
ered as  the  first  full  and  exhaustive  exposition  of  a  doctrine  now 
generally  received  both  in  Kngland  and  America,  in  the  law  of  libel, 
vii :  that  the  libellous  composition  mint  be  judged  as  a  whole,  and 
not  by  detached  parts;  and  that,  judging  it  by  this  standard,  though 


74  ME.  ERSKINE'S  SPEECH. 

heated  expressions  and  invective  may  be  found  in  some  of  its  parts, 
which,  taken  singly,  might  even  be  construed  as  libellous,  yet,  if  taken 
as  a  whole  it  shall  not  be  found  to  exceed  the  limits  of  fair  discussion, 
the  defendant  shall  be  acquitted.  However  individual  tastes  may  differ 
as  to  the  place  which  should  be  assigned  this  speech  of  Mr.  Erskine's, 
its  high  merit  none  will  deny.  Comparison  has  been  most  frequently 
instituted  between  this  and  his  argument  in  defence  of  Lord  George 
Gordon,  and  with  varying  opinions.  A  cotemporary  of  Erskine  in  a 
critical  review  of  his  published  speeches,  does  not  hesitate  to  pronounce 
this  the  "finest  of  all  his  orations,  whether  we  regard  the  wonderful 
skill  with  which  the  argument  is  conducted,  the  soundness  of  the  prin- 
ciples laid  down,  and  their  happy  application  to  the  case,  or  the  exqui- 
site fancy  with  which  they  are  embellished  and  illustrated,  and  the 
powerful  and  touching  language  in  which  they  are  conveyed.  It  is 
justly  regarded  by  all  English  lawyers  as  a  consummate  specimen  of 
the  art  of  addressing  a  jury;  as  a  standard,  a  sort  of  precedent  for 
treating  cases  of  libel,  by  keeping  which  in  his  eye,  a  man  may  hope  to 
succeed  in  special  pleading  his  client's  case  within  its  principle,  who  is 
destitute  of  the  talent  required  even  to  comprehend  the  other  and  higher 
merits  of  his  original.  By  those  merits  it  is  recommended  to  the  lovers 
of  pure  diction,  of  copious  and  animated  description,  of  lively  pictu- 
resque, and  fanciful  illustration,  of  all  that  constitutes,  if  we  may  so 
speak,  the  poetry  of  eloquence,  all  for  which  we  admire  it  when  pre- 
vented from  enjoying  its  music  and  its  statuary."  See  Edinburgh  Review, 
Volxvi.,  110-11. 


REPLY  OF  THE  ATTORNEY-GENERAL. 


GENTLEMEN  OF  THE  JURY:     Mv  learned  friend 

w 

and  I  stand  very  much  contrasted  with  each  other 
in  this  cause.  To  him  belong  infinite  eloquence 
and  ingenuity,  a  gift  of  jwrsuasion,  beyond  that 
which  I  almost  ever  knew  fall  to  any  man's  share, 
and  a  power  of  language  greater  than  that  which 
ever  met  my  ear. 

In  his  situation  it  is  not  only  permitted  to  him, 
but  it  is  commendable ;  it  is  his  duty  to  his  client, 
to  exert  all  those  faculties,  to  comprehend  every 
possible  topic,  that  by  the  utmost  stretch  of  inge- 
nuity can  possibly  be  introduced  into  the  most 
remote  connection  with  the  cause.  I,  on  the  other 
hand,  gentlemen,  must  disclaim  those  qualities 
which  I  ascribe  to  my  learned  friend,  namely  that 
ingenuity,  that  eloquence,  and  that  power  of  words; 
but  if  they  did  belong  to  me,  we  stand  contrasted 
also  in  this  circumstance,  that  I  durst  not  in  my 
present  situation  use  them,  whatever  little  effort  I 
might  make  to  that  effect,  acting  the  part  simply 
of  an  advocate  in  a  private  cause.  All  that  I  must 
abandon  to-day,  recollecting  the  situation  in  which 
I  stand.  Gentlemen,  however  unworthily,  yet  so 


76  REPLY   OF   THE   ATTOKJSTEY-GENERAL 

it  is,  that  I  stand  in  the  situation  of  the  first  officer 
of  this  high  court ;  therefore  the  utmost  fair  deal- 
ing, the  plainest  common  sense,  the  clearest  argu- 
ment, the  utmost  bona  fides  with  the  court  and 
jury,  are  the  duties  incumbent  upon  me.  In  that 
spirit  therefore,  gentlemen,  you  will  not  expect 
from  me  the  discharge  of  my  duty,  in  any  other 
way  than  by  the  most  temperate  observation,  and 
by  the  most  correct  and  the  fairest  reasoning  in 
my  power. 

One  should  have  thought,  from  the  general  turn 
of  my  learned  friend's  arguments,  that  I  had  in 
this  information  imputed  it  as  a  crime  to  the 
deceased  gentleman  whom  he  named,  and  whom  I 
think  I  hardly  recollect  ever  to  have  heard  named 
before,  that  I  had  imputed  it  to  him  as  an  offence, 
merely  that  he  reasoned  in  defence  of  Mr.  Hastings 
ably  and  eloquently,  as  is  asserted.  My  learned 
friend  ha,s  said,  that  I  have  picked  out  passages 
here  and  there  disconnected  and  disjointed,  and 
have  omitted  a  vast  variety  of  other  passages.  I 
hardly  think  that  his  second  observation  would 
have  been  made,  had  it  not  been  for  the  sake  of 
his  first;  but  inasmuch  as  I  studiously  avoided, 
and  would  insert  no  one  single  line  that  consisted 
of  fair  reasoning  and  defence  of  Mr.  Hastings, 
inasmuch  as  it  was  no  part  of  my  duty  so  to  do  ; 
so  he  has  exculpated  me  by  saying,  that  the 
loading  an  information  with  that  which  was  not 


ON   THE  TRIAL  OF  JOHN   STOCKDALE.  77 

immediately  to  the  point,  was  a  thing  which  I  had 
avoided  with  propriety. 

This  hook,  as  my  learned  friend  himself  has 
descrihed  it  to  you,  and  read  the  greater  jwirt  of, 
consists  of  many  different  heads;  it  consists  of  an 
historical  narration  of  facts,  with  which  I  do  not 
quarrel.  It  consists  of  extracts  from  original 
papers,  with  which  I  do  not  quarrel.  It  consists 
of  arguments,  of  reasoning,  and  of  very  good 
declamation ;  with  that  I  do  not  quarrel.  But  it 
consists  also  of  a  stain,  and  a  deep  stain,  upon  your 
representatives  in  Parliament.  My  learned  friend 
BftjB,  that  this  is  written  with  a  friendly  zeal  for 
Mr.  Hastings.  I  commend  that  zeal ;  hut  at  the 
same  time  you  will  permit  me  to  distinguish,  if 
that  cpuld  avail,  between  the  zeal  of  an  author  for 
Mr.  Hastings,  and  the  cold,  lucrative  motives  of 
the  printer  of  that  author's  work.  It  was  the  duty 
of  that  printer  to  have  the  work  revised  by  some 
one  else,  if  he  has  not  the  capacity  to  do  it  himself, 
and  to  see  that  poison  does  not  circulate  among 
the  public.  It  was  his  bounden  duty  to  do  that: 
zeal  could  not  excuse  or  exculpate  even  the  author, 
much  less  the  mechanical  printer;  though,  |>erhaps, 
if  this  had  been  shown  in  manuscript  as  the  work 
of  a  zealous  friend,  great  allowance  might  have 
been  made  for  that  zeal. 

My  learned  friend,  for  the  purjx)se  of  argument, 
deviated  into  almost  every  field  that  it  was  possible 


78  REPLY   OF   THE   ATTORNEY-GENERAL 

for  knowledge  such  as  his,  for  reading,  experience, 
for  knowledge  of  nature,  and  every  thing  that 
belongs  to  human  affairs ;  he  has  deviated  into 
them  at  great  length,  and  nine-tenths  of  his  argu- 
ment consisted  of  nothing  else.  Instead  of  that, 
what  is  this  question  ?  The  coldest,  the  dullest, 
the  driest  of  all  possible  questions.  It  is  neither 
more  nor  less  than  this,  whether,  when  the  great 
tribunal  of  the  nation  is  carrying  on  its  most 
solemn  proceeding  for  the  benefit  and  for  the 
interests  of  the  public,  whether,  while  it  is  even 
depending,  and  not  ripe  for  judgment,  the  accusers, 
the  House  of  Commons,  who  carry  up  their  impeach- 
ment to  the  House  of  Lords,  are  slandered  by  being 
called  persons  acting  from  private  and  interested 
animosity  ;  persons  who  studiously,  when  they  find 
a  meritorious  servant  of  the  country  come  home 
crowned  with  laurels,  as  it  is  expressed,  are  sure  to 
do  what  ?  To  impeach  and  to  ruin  him. 

I  shall  also  studiously  avoid  anything  respecting 
politics  or  party,  or  anything  respecting  the  con- 
duct or  opinions  of  any  men  in  another  place ;  and 
my  learned  friend  will  excuse  me  also,  if  I  do  not 
state  my  own.  These  I  avoid  for  this  reason,  that 
when  we  are  within  these  walls,  we  are  to  betake 
ourselves  to  the  true  and  genuine  principles  of  our 
law  and  constitution ;  the  justest  picture  of  oppres- 
sion of  one  man  cannot  justify  the  calumniating 
other  men ;  it  may  justify  the  defending  that  man, 


ON   TIJE  TRIAL  OF  JOHN   8TOCKDALE.  79 

but  it  will  not  justify  a  stain  upon  the  House  of 
Commons  of  this  country.  And,  gentlemen,  surely 
this  author,  considerable  as  he  is  as  a  man  acquaint- 
ed with  composition,  betrays  the  cause  of  Mr.  Hast- 
ing*, as  I  should  think ;  at  least  he  does  Mr. 
Hastings  no  service  by  going  tayond  his  defence, 
by  deserting  and  abandoning  the  declamation,  and 
the  reasoning,  of  which  he  seems  to  be  a  consid- 
erable master,  and  deviating  into  slander  and 
calumny  UJ>OM  the  House  of  Commons,  his  accusers, 
My  learned  friend  has  used  an  analogy.  He  tells 
you  the  House  of  Commons  is  a  grand  jury  ;  I  close 
with  him  in  that  analogy ;  I  ask  you,  as  lovers  of 
good  order,  as  men  desirous  of  repressing  licen- 
tiousness, as  persons  who  wish  that  your  country 
should  be  decently  and  well  governed,  whether 
you  would  endure  for  an  instant,  if  this  were  an 
information  against  the  defendant,  who  had  pul>- 
lished  that  a  grand  jury  found  a  bill,  not  because 
they  thought  it  a  right  thing  that  the  j^rson  ac- 
cused should  be  put  upon  his  trial,  but  that  they 
found  the  indictment  against  him  l>ecause  he  was 
meritorious;  that  they  did  it  from  principles  of 
private  animosity,  and  not  with  a  regard  to  public 
justice.  If  an  indictment  were  brought  l>eforeyou, 
for  a  slander  of  that  sort  uj>on  a  grand  jury,  could 
you  hesitate  an  instant  in  saying  that  it  was  repre- 
hensible, and  a  thing  not  to  be  endured?  Why 
then,  if  the  whole  representatives  of  the  nation  are 


80  EEPLY    OF    THE    ATTORNEY-GENERAL. 

acting  in  that  capacity ;  if,  after  many  years'  in- 
vestigation, they  bring  charges  against  an  individ- 
ual, is  it  any  apology,  justification  it  cannot  be,  for 
an  author,  in  his  zeal  for  his  friend,  to  tack  to  it 
that  which  must  be  a  disgrace  to  the  country  if  it 
were  true,  and  therefore  must  not  be  circulated 
with  impunity  ?  The  commendation  which  even 
my  learned  friend  has  bestowed  upon  this  work, 
the  impassioned  and  animated  manner  in  which  he 
has  recommended  it  to  your  perusal,  and  that  of 
every  man  in  the  country,  most  manifestly  prove 
what  I  stated  in  opening  this  cause ;  that  when 
such  mischief  as  this  is  found  in  a  book,  written 
by  a  person  of  no  mean  abilities,  it  comes  recom- 
mended to,  and  in  fact  misleads,  the  best  under- 
standings in  the  country.  I  leave  any  man  to 
judge  of  the  mischievous  tendency  of  such  a  com- 
position, compared  with  the  squibs,  paragraphs, 
and  idle  trash  of  the  day,  which  frequently  die 
away  with  it.  Upon  this  principle,  those  passages 
which  I  selected  and  put  into  this  information,  and 
which  immediately  regard  the  House  of  Commons, 
naturally  gave  offence  to  the  House.  They  felt 
themselves  calumniated  and  aspersed,  and  entitled 
to  redress  from  a  jury. 

My  learned  friend  says :  Why  don't  the  House 
of  Commons  themselves  punish  it  ?  Is  that  an  argu- 
ment to  be  used  in  the  mouth  of  one  who  recom- 
mends clemency?  Does  he  recommend  that  the 


ON   THE  TRIAL  OF  JOHN   STOCK  DALE.  81 

iron  hand  of  power  should  come  down  upon  a  man 
of  this  sort,  instead  of  temperately,  wisely,  and 
judiciously  submitting  to  the  common  law  of  this 
country,  saying,  let  him  be  dealt  with  by  that 
common  law?  There  he  will  have  a  scrupulously 
impartial  trial.  There  he  will  have  every  advan- 
tage that  the  meanest  subject  of  the  country  is 
entitled  to. 

But,  says  my  learned  friend,  passages  are  selected 
from  distant  pages,  and  tacked  together;  the  con- 
text between  must  explain  the  meaning  of  those 
passages;  and  he  compares  it  to  taking  one-half  of 
a  sentence,  and  tells  you  that  if  any  man  should 
say,  there  is  no  God,  taking  that  part  alone,  he 
would  be  a  blasphemer;  whereas  taking  the  whole 
Terse,  that  the  fool  hath  said  in  his  heart,  there  is 
no  God,  in  that  sense  it  becomes  directly  the  re- 
verse of  blasphemy.  Now,  has  he  found  any  one 
garbled  sentence  in  the  whole  course  of  this  infor- 
mation? Is  not  every  one  a  clear,  distinct,  and 
separate  proposition  ?  On  the  contrary,  when  he 
himself  accuses  me,  not  personally  but  officially, 
of  not  having  stated  the  whole  of  this  volume 
upon  record,  and  undertaking  to  supply  my  de- 
fects, he  misses  this  very  sentence:  "Assertions 
so  hardy,  and  accusations  so  atrocious,  ought  not 
to  have  been  introduced  into  the  preamble  of  an 
impeachment,  before  an  assembly  so  respectable 
as  the  house  of  peers,  without  the  clearest  and 
6  B 


82  REPLY   OF    THE   ATTORNEY-GENERAL 

most  incontrovertible  evidence.  In  all  transactions 
of  a  political  nature  there  are  many  concealed 
movements  that  escape  the  detection  of  the  world  ; 
but  there  are  some  facts  so  broad  and  glaring,  so 
conspicuous  and  prominent,  as  to  strike  the  general 
eye  and  meet  the  common  level  of  the  human 
understanding." 

Now,  gentlemen,  I  only  adduce  this  to  show  that 
it  is  possible  that  two  leaves  may  be  turned  over 
at  once  on  the  defendant's  side  of  the  question; 
and  likewise  to  show  you  that  I  have  not,  for  the 
purpose  of  accusation,  culled  and  picked  out  every 
pas.sage  that  I  might  have  picked  out,  or  every 
one  that  would  bear  an  offensive  construction;  but 
have  taken  those  prominent  parts  where  this  author 
has  abandoned  the  purpose  my  learned  friend  as- 
cribes to  him,  that  of  extenuating  the  guilt  imputed 
to  Mr.  Hastings,  and  of  showing  that  he  had  merit 
rather  than  demerit  with  the  public.  The  passages 
were  selected  to  show  that  I  have  betaken  myself 
to  the  fifth  head  of  the  work,  as  I  enumerated 
them  before,  where  the  author  does  not  content 
himself  with  executing  that  purpose,  but  holds  out 
the  House  of  Commons  as  persons  actuated  by  pri- 
vate malice,  not  only  to  the  eyes  of  the  subjects  of 
this  country,  but  also  to  surrounding  nations,  whose 
eyes  are  unquestionably  upon  us,  throughout  the 
whole  course  of  the  proceeding. 


ON   THE  TRIAL  OF  JOHN  STOCK  DALE.  S3  ' 

I  ask  von  whether  anv  reasonable  answer  has 

V  V 

been  given  to  the  interpretation  which  I  put  upon 
the  various  passages  in  this  l)ook  ?  The  first  of 
them,  I  admit,  with  my  learned  friend,  is  simply 
an  introduction,  and  is  stated  in  the  information 
merely  to  show  that  the  author  himself  knew  the 

tf 

,  position  and  the  state  of  things,  viz.,  that  the 
impeachment  had  been  carried  up  to  the  House 
of  Lords,  and  was  there  depending  for  their  judg- 
ment 

Then,  after  having  reasoned  somewhat  uj>on  the 
introduction  to  these  several  articles  of  impeach- 
ment, and  after  having  stated  that  these  had  been 
circulated  in  India,  he  goes  on  to  say  : 

"Will  accusations,  built  upon  such  a  baseless 
fabric,  prepossess  the  public  in  favor  of  the 
impeachment  ?  What  credit  can  we  give  to  multi- 
plied and  accumulated  charges,  when  we  find  that 
they  originate  from  misrepresentation  and  false- 
hood?" 

My  learned  friend  himself  told  you,  in  a  subse- 
quent part  of  his  speech,  that  those  accusations 
originated  from  an  inquiry  which  lasted  two  years 
and  a  half,  by  a  secret  committee  of  the  House  of 
Commons,  of  which  I  myself  was  a  pretty  laborious 
member:  if  that  be  so,  what  pretence  is  there 
here  for  impregnating  the  public  with  a  belief  that 
from  false,  scandalous  and  fabricated  materials, 
those  charges  did  originate  ?  Is  not  that  giving  a 


84  REPLY    OF    THE    ATTORNEY-GENERAL 

directly  false  impression  to  the  public?  Are  not 
those  to  be  protected  from  slander  of  this  sort 
who  take  so  much  pains  to  investigate  what 
appears  to  them,  in  the  result,  to  be  a  fit  matter 
not  for  them  to  decide  ultimately  upon,  but  to  put 
in  a  course  of  trial  where,  ultimately,  justice  will 
be  done  ? 

Has  my  learned  friend  attempted  any  explana- 
tion, or  other  interpretation,  to  be  put  upon  these 
words  than  that  which  the  information  imputes  ? 

"  If  after  exerting  all  your  efforts  in  the  cause 
of  your  country,  you  return  covered  with  laurels 
and  crowned  with  success;  if  you  preserve  a  loyal 
attachment  to  your  sovereign;  you  may  expect 
the  thunders  of  parliamentary  vengeance — you 
will  certainly  be  impeached,  and  probably  be 
undone." 

Is  it  to  be  said  and  circulated  in  print  all  over 
the  world  that  the  House  of  Commons  is  composed 
of  such  materials  that  exactly  in  proportion  to  a 
man's  merit  is  their  injustice  and  inhuman  tyranny  ? 
Is  that  to  be  said  or  printed  freely  under  the  pre- 
text that  the  author  is  zealous  in  the  interest  of  a 
gentleman  under  misfortune  ?  But  it  is  said  there 
are  forty  libels  every  day  published  against  this 
gentleman,  and  no  one  is  permitted  to  defend  him. 
Let  all  mankind  defend  him ;  let  every  man  that 
pleases  write  what  he  will,  provided  he  does  it 
within  the  verge  of  the  law;  if  he  does  it  as  a 


ON   THE   TRIAL   OF   JOHN   STOCK  DALE.  85 

manly  and  good  subject,  confining  himself  to  rea- 
sonable and  good  argument. 

My  learned  friend  says,  if  you  stop  this,  the 
press  is  gagged;  that  it  never  can  be  said  with 
impunity  that  the  King  and  the  constable  are  in 
the  same  predicament  The  King  and  the  con- 
stable are  in  one  respect  in  the  same  predicament, 
with  great  difference  indeed  in  the  gradation,  and 
in  the  comparison  ;  but,  without  all  question,  both 
are  magistrates ;  the  one,  the  highest,  to  whom  we 
look  with  awe  and  reverence* ;  and  to  the  other 
with  obedience  when  within  his  sphere;  that  may 
be  freely  said  in  this  country,  and  ever  will  be 
said.  But  is  it  the  way  to  secure  the  liberty  of 
the  press,  that  at  the  time  when  the  nation  is 
solemnly  engaged  in  the  investigation  of  the  con- 
duct of  one  of  its  first  servants,  that  servant 
should  not  only  be  defended  by  fair  argument  and 
reason  as  far  as  it  goes,  but  that  his  accusers  are 
to  be  charged  with  malice  and  personal  animosity 
against  him? 

If  the  audacious  voice  of  slander  shall  go  80 
high  as  that  with  impunity,  who  is  there  that  will 
ever  undertake  to  be  an  accuser  in  this  country? 
I  am  sure  I,  for  one,  who  sometimes  am  called 
upon,  I  hope  as  sparingly  as  public  exigency  will 
admit  of,  to  exercise  that  odious  and  disagreeable 
task,  would  with  pleasure  sacrifice  my  gown,  if  I 
saw  it  established,  that  even  the  highest  accusers 


86  REPLY    OF    THE    ATTORNEY-GENERAL 

that  the  country  knows  are,  under  the  pretence  of 
the  defence  of  an  individual,  to  be  vilified  and 
degraded.  If  this  be  permitted,  can  subordinate 
accusers  expect  to  escape? 

Gentlemen,  give  me  leave  again  to  remind  you, 
that  nothing  can  ever  secure  a  valuable  blessing 
so  effectually  as  enforcing  the  temperate,  legal  and 
discreet  use  of  it ;  and  it  cannot  be  necessary  for 
the  liberty  of  the  press  that  it  should  be  licentious 
to  such  an  extreme.  Believe  me,  that  if  this 
country  should  be  worked  up,  as  I  expressed  it 
yesterday,  to  a  paroxysm  of  disgust  against  the 
licentiousness  of  the  press,  which  has  attacked  all 
ranks  of  men,  and  now  at  last  has  mounted  up  to 
the  legislative  body,  its  liberty  perhaps  never  can 
be  in  greater  danger ;  something  may  be  done  in 
that  paroxysm  of  disgust  which  might  be  the  grad- 
ual means  of  sapping  the  foundation  of  that  best 
of  our  liberties — a  free  press. 

Is  it  not  obvious  to  common  sense,  that  if  the 
whole  country  is  rendered  indignant  by  the  licen- 
tiousness of  the  press  knowing  no  bounds,  this  is 
the  instant  of  greatest  hazard  to  its  freedom  ?  Be- 
sides, is  the  folly  of  the  subjects  of  Great  Britain 
such,  that,  in  order  to  enjoy  a  thing  in  all  its  per- 
fection, and  to  all  its  good  purposes,  it  is  necessary 
to  encourage  its  extrernest  licentiousness?  If  you 
shall  encourage  this  its  extremest  licentiousness  (I 
venture  to  call  it  such  when  the  great  accusatorial 


OX   THE   TRIAL   OF   JOHN   STOCK  DA  I.E.  87 

body  of  the  nation  is  slandered  in  this  manner),  if 
you  give  h  such  encouragement  to-day,  no  man  win 
tell  where  it  will  reach  hereafter. 

Therefore,  so  far  from  cramping  the  press,  so 
far  from  sapping  its  foundation,  so  far  from  doing 
it  an  injury,  you  are,  on  the  contrary,  taking  the 
surest  means  to  preserve  it,  by  distinguishing  the 
two  parts  of  this  l>ook,  and  by  saying,  true  it  is, 
that  any  man  is  at  liberty  to  exjiouiid  and  to 
explain  in  print  the  .conduct  of  another,  to  justify 
it,  if  he  pleases,  by  stating,  in  a  manly  way,  that 
which  belongs  to  his  subject ;  but  the  moment  that 
he  steps  aside  and  slanders  an  individual,  much 
more  the  awful  body  of  the  representatives  of  the 
people,  there  he  has  done  wrong ;  there  he  has 
trespassed  upon  the  liberty  of  the  press,  and  has 
imminently  hazarded  its  existence. 

Gentlemen,  lay  your  hands  upon  your  hearts,  ask 
yourselves  as  men  of  honor,  because  I  know  that 
binds  you  as  much  as  your  oaths;  ask  yourselves, 
whether  the  true  meaning  of  this  libel  is  not,  that 
not  from  public  grounds,  not  from  conviction,  not 
with  a  view  to  render  public  service,  but  from 
private  pique,  from  private  malice,  from  bye 
motives,  which  I  call  corruption,  the  House  of  Com- 
mons have  been  induced  to  scud  this  gentleman  to 
an  inquiry  before  the  proper  tribunal ;  and  that 
too,  as  the  libel  expresses  it,  without  even  reading 
it,  without  hearing,  without  consideration ;  judge, 


55  EEPLY   OF   THE   ATTORNEY-GENERAL. 

I  say,  whether  that  be  not  the  true  exposition  of 
this  libel,  and  then,  gentlemen,  consider  with  your- 
selves what  the  effect  will  be,  if  you  ratify  and  con- 
firm such  an  offence,  by  suffering  this  defendant  to 
escape. 


CHARGE   TO   THE   JURY. 


Lord  Kenyon  then  summed  up  as  follows: 

GENTLEMEN  OF  THE  JURY  :  I  do  not  feel  that 
I  am  called  upon  to  discuss  the  nature  of  this  lihel, 
or  to  state  to  you  what  the  merit  of  the  composi- 
tion is,  or  what  the  merit  of  the  argument  is,  hut 
merely  to  state  what  the  questions  are,  to  which 
you  are  to  apply  your  judgment,  and  the  evidence 
given  in  support  of  this  information.  It  is  impos- 
sible, when  one  reads  the  preface  to  it,  which  states 
that  the  libel  was  written  to  asperse  the  House  of 
Commons,  not  to  feel  that  it  is  a  matter  of  con- 
siderable importance ;  for  I  do  not  know  how  far 
a  fixed  general  opinion  that  the  House  of  Commons 
dcBOiVOU  to  have  crimes  imputed  to  it,  may  go; 
for  men  that  are  governed  will  be  thereby  much 
influenced  by  the  confidence  which  should  be 
reposed  in  government  Mankind  will  never  for- 
get that  governors  are  not  made  for  the  sake  of 
themselves,  but  are  placed  in  their  respective  sta- 
tions, to  discharge  the  function  of  their  office  for 
the  benefit  of  the  public;  and  if  they  should  ever 
conceive  that  their  governors  are  so  inattentive  to 


90  CHAEGE   TO   THE  JUEY 

their  duty,  as  to  exercise  their  functions  only  to 
keep  themselves  in  power,  and  for  their  own  emolu- 
ment, without  attending  to  tho  interests  of  the 
public,  government  must  be  relaxed,  and  at  last 
crumble  into  dust ;  and,  therefore  if  the  case  be 
made  out,  which  is  imputed  to  the  defendant,  it  is 
no  doubt  a  most  momentous  case  indeed ;  but 
though  it  is  so,  it  does  not  follow  that  the  defend- 
ant is  guilty;  and  juries  have  been  frequently 
told,  and  I  am  bound,  in  the  situation  in  which  I 
stand,  to  tell  you,  that,  in  forming  your  judgment 
upon  this  case,  there  are  two  points  for  you  to 
attend  to,  namely  : 

Whether  the  defendant,  who  is  charged  with 
having  published  this,  did  publish  it ;  and  whether 
the  sense  which  the  Attorney-General,  by  his  innu- 
endoes in  this  information,  has  affixed  to  the  differ- 
ent passages,  is  fairly  affixed  to  them. 

From  any  consideration  as  to  the  first  of  these 
points  you  are  delivered,  because  it  is  admitted 
that  the  book  was  published  by  the  defendant ; 
but  the  other  is  the  material  point  to  which  you 
are  to  apply  your  judgment.  It  has  been  entered 
into  with  wonderful  abilities,  and  much  in  the 
detail ;  but  it  is  not  enough  for  a  man  to  say,  I  am 
innocent;  it  belongs  alone  to  the  Great  Searcher 
of  hearts  to  know  whether  men  are  innocent  or 
not;  we  are  ,to  judge  of  the  guilt  or  innocence  of 


ON  THE  TRIAL  OF  JOHN  STOCKDALE.     91 

men,  because  we  have  no  other  rule  to  go  by,  by 
their  overt  acts,  i.  e.,  from  what  they  have  done. 

In  applying  the  innuendoes,  I  accede  entirely  to 
what  was  laid  down  by  the  counsel  for  the  defend- 
ant, and  what  was  admitted  yesterday  by  the 
Attorney-General,  as  counsel  for  the  Crown,  that 
you  must,  upon  this  information,  make  up  your 
minds  that  this  was  meant  as  an  aspersion  upon 
the  House  of  Commons ;  and  I  admit  also  that  in 
forming  your  opinion  you  are  not  bound  to  confine 
your  inquiry  to  those  detached  passages  which  the 
Attorney-General  has  selected  as  offensive  matter, 
and  the  subject  of  prosecution.  But  let  me  on  the 
other  side  warn  you,  that  though  there  may  be 
much  good  writing,  good  argument,  morality,  and 
humanity,  in  many  parts  of  it,  yet  if  there  are 
offensive  passages,  the  good  part  will  not  sanctify 
the  bad  part. 

Having  stated  that,  I  ought  also  to  tell  you, 
that  in  order  to  see  what  is  the  sense  to  be  fairly 
imputed  to  those  parts  which  are  culled  out  as  the 
offensive  passages,  you  have  a  right  to  look  at  all 
the  context ;  you  have  a  right  to  look  at  the  whole 
book ;  and  if  you  find  it  has  been  garbled,  and 
that  the  passages  selected  by  the  Attorney-General 
do  not  bear  the  sense  imputed  to  them,  the  man 
has  a  right  to  be  acquitted  ;  and  God  forbid  he 
should  be  convicted.  It  is  for  you,  upon  reading 
the  information,  which,  if  you  go  out  of  court,  you 


92  CHARGE   TO   THE   JURY 

will  undoubtedly  take  with  you,  and  by  comparing 
it  with  this  pamphlet,  to  see  whether  the  sense 
the  Attorney-General  has  affixed,  is  fairly  affixed ; 
always  being  guided  by  this,  that  where  it  is  truly 
ambiguous  and  doubtful,  the  inclination  of  your 
judgment  should  be  on  the  side  of  innocence ;  but 
if  you  find  you  cannot  acquit  him  without  distort- 
ing sentences,  you  are  to  meet  this  case,  and  all 
other  cases,  as  I  stated  yesterday, with  the  fortitude 
of  men  feeling  that  they  have  a  duty  upon  them 
superior  to  all  leaning  to  parties ;  namely,  the 
administration  of  justice  in  the  particular  cause. 

It  would  be  in  vain  for  me  to  go  through  this 
pamphlet  which  has  been  just  put  into  my  hand, 
and  to  say  whether  the  sense  affixed  is  the  fair 
sense  or  not.  As  far  as  disclosed  by  the  informa- 
tion, these  passages  afford  a  strong  bias  that  the 
sense  affixed  to  them  is  the  fair  sense  ;  but  of  that 
you  will  judge,  not  from  the  passages  themselves 
merely,  but  by  reading  the  context,  or  the  whole 
book ;  so  much  at  least  as  is  necessary  to  enable 
you  to  ascertain  the  true  meaning  of  the  author. 

If  I  were  prepared  to  comment  upon  the  pam- 
phlet, in  my  situation  it  would  be  improper  for  me 
to  do  it.  My  duty  is  fulfilled  when  I  point  out  to 
you  what  the  questions  are  that  are  proposed  to 
your  judgment,  and  what  the  evidence  is  upon  the 
questions ;  the  result  is  yours,  and  yours  only. 


ON   THE  TRIAL   OF   JOHN   STOCK  DALE.  03 

The  jury  retired,  and  after  an  aWnee  of  two  hours, 
returned  with  a  verdict  of  "not  guilty."  Lord  Campbell 
mentions  the  length  of  their  deliberations  as  a  nomewlmt 
remarkable  fact  in  view  of  the  powerful  argument  of  Mr. 
Erskiue,  and  its  wonderful  effect  ujM»n  all  who  heard  it  Ho 
alludes,  however,  as  explanatory  of  the  doubts  of  the  jury, 
and  a*  adding  to  the  triumph  of  the  advocate,  to  the  fact 
that  this  trial  took  place  before  the  passage  of  Mr.  Fox's 
libel  act,  and  during  a  period  when  judges  did  not  he*ilate 
to  instruct  juries  that  their  only  province,  in  case  of  libel, 
was  to  determine  the  bare  fact  of  whether  the  alleged  libel 
had  been  published  by  the  defendant. 


THE  TRIAL  OF  JOHN  FROST. 

HILARY  TERM,   1793. 


The  trial  of  John  Frost,  an  eminent  London  attorney,  is 
the  first  of  that  remarkable  series  of  state  trials  in  which 
Mr.  Erskine  appeared  for  the  defence,  and  in  which  his 
labors  accomplished  so  much  for  the  cause  of  personal  lib- 
erty. Mr.  Frost  was,  with  the  full  concurrence  of  the  Lord 
Chancellor,*  indicted  by  the  Attorney-General  for  having,  in 
a  coffee-house,  while  heated  with  wine,  made  use  of  the 
expression,  "  I  am  for  equality,  and  no  king."  The  entire 
history  of  the  case  sufficiently  appears  in  the  speech  of  the 
Attorney-General  and  in  the  evidence  subjoined. 


The  indictment  having  been  opened  by  Mr. 
Wood,  the  Attorney-General  spoke  as  follows : 

GENTLEMEN  OP  THE  JURY  :  Though  I  have  the 
honor  to  attend  you,  in  my  official  character,  it 
will  not  have  escaped  your  attention  that  this 
charge  is  brought  against  the  present  defendant 
by  an  indictment. 

Gentlemen,  the  transaction,  with  the  guilt  of 
which  the  defendant  is  charged,  happened  upon 

*Loughborough. 


ON   THE   TRIAL   OF   JOHN    FROST.  05 

the  6th  of  November  last.  I  hope  I  shall  not  he 
thought  guilty  of  stating  anything  that  win  he  con- 
sidered as  improper,  when  I  will  your  attention  to 
a  fact  that  is  notorious  to  the  whole  country ;  that 
about  that  period  public  representation  had  been 
made,  that  the  minds  of  men  were  alienated  from 
that  constitution,  which  had  long  been  the  subject 
of  the  warmest  encomiums  of  the  best  informed 
men  in  this  country ;  which  we  have  l>cen  in  the 
habit  of  considering  as  the  best  birthright  which 
our  ancestors  could  have  handed  down  to  us,  and 
which  we  have  been  long  in  the  habit  of  consider- 
ing as  the  most  valuable  inheritance  that  we  had 
to  transmit  to  our  posterity.  This  constitution 
had  been  represented  as  that  from  which  the  affec- 
tions cf  the  country  had  become  altogether 
alienated ;  we  were  told  that  this  disaffection  was 
moving  along  the  country  with  the  silence  of 
thought ;  and  something  like  a  public  challenge 
was  written  to  meet  men  who  are  fond  of  other 
systems,  by  fair  appeals  to  the  public,  who  are 
finally  to  decide  upon  every  question  between 
every  individual  of  this  country,  and  the  govern- 
ment. 

Gentlemen,  the  Attorney-General  of  that  day,  who 
found  himself  by  the  duty  of  his  office  called  upon 
to  watch  over,  what  he  considered,  a  proj>erty  and 
inheritance  of  inestimable  value,  thought  it  neces- 
sary to  meet  this  sort  of  observation,  by  stripping 


96  SPEECH   OF   THE   ATTORNEY-GENERAL 

himself  of  what  belonged  to  him  in  his  official 
character;  and  appealing,  as  far  as  he  could  appeal, 
to  the  tribunals  of  the  country,  which  the  wisdom 
of  the  constitution  had  established,  for  the  purpose 
of  protecting  men  from  improper  accusations;  and 
he  did  not  therefore  call  upon  those  whom  he 
thought  proper  to  prosecute,  by  the  exercise  of 
any  official  authority  of  his  own,  putting  them  and 
himself  at  issue  upon  these  points,  as  it  were,  before 
a  jury  of  the  country,  but  he  directed  indictments 
to  be  carried  to  the  grand  juries  of  the  country,  to 
take  their  sense  upon  the  subject,  and  to  have  their 
opinion,  whether  it  was  fit  that  persons  propagating 
such  doctrines  as  this  defendant  stands  charged 
with,  should,  or  should  not,  be  suffered  in  this 
country  to  state  them  with  impunity? 

Gentlemen,  in  consequence  of  this  determination 
the  present  defendant  stands  indicted  ;  and  before 
I  state, the  words  to  you,  I  think  it  my  duty  to 
mention  to  you,  that  he  is  now  to  be  tried  upon  the 
second  indictment  which  a  grand  jury  of  this 
country  has  found.  When  the  first  indictment 
was  carried  before  the  grand  jury,  this  defendant 
was  abroad;  a  warrant  was  issued  for  his  appre- 
hension, and  he  returned  to  this  country  in  the 
month  of  February  last :  he  appeared  to  the  indict- 
ment, and  gave  bail  to  it ;  by  some  accident  he 
had  been  indicted  by  a  name  which  does  not 
belong  to  him,  and  pleaded  the  misnomer  in  abate- 


ON    THE   TRIAL   OF   JOHN    FROST.  07 

ment.  Another  indictment  was  carried  before 
the  second  grand  jury,  who  found  that  second 
indictment  without  any  hesitation,  and  it  i-  in  con- 
sequence of  that  proceeding  that  he  is  called  upon 
to-day  to  deny  the  truth  of  the  charges  which  this 
information  contains,  or  to  state  to  you  upon  what 
grounds  lie  is  to  contend,  that  his  conduct  as 
stated  in  this  indictment  is  to  be  considered  as 
legal. 

Gentlemen,  the  transaction  which  the  indictment 
charges  him  with,  happened  on  the  Oth  of  Novem- 
ber last ;  you  will  find  from  the  conversation,  as  it 
will  be  given  in  evidence  to  you  that  Mr.  Frost 
had,  I  think,  returned  from  France  shortly  before ; 
that  he  had  dined  with  a  set  of  gentlemen,  whom 
I  believe  to  be  very  respectable,  at  the  Percy 
coffee-house  upon  that  day.  lie  came  into  the 
public  coffee-house  between  nine  and  ten  in  the 
evening,  as  nearly  as  I  am  able  to  ascertain  the 
time,  and  a  gentleman  who  had  long  been  acquaint- 
ed with  him,  to  whom  I  believe  I  may  venture  to 
say,  Mr.  Frost  was  certainly  under  no  dLsobliga- 
tions  in  life,  seeing  him,  addressed  him  as  an 
acquaintance,  asked  whether  he  was  lately  come 
from  France,  and  how  matters  went  on  in  that 
country  ?  Mr.  Frost  told  him  he  was  lately  come 
from  France,  and  expected  soon  to  go  there  again  ; 
he  then  added  the  words  that  have  been  read  to 
you  from  the  indictment:  "I  am  for  equality;  I 
7  B 


98  SPEECH   OF    THE   ATTORNEY-GENERAL 

can  see  no  reason  why  any  man  should  not  be  upon 
a  footing  with  another ;  it  is  every  man's  birth- 
right," 

Gentlemen,  some  persons  present  in  this  coffee- 
room,  the  general  conduct  of  all  of  whom,  I  think, 
will  have  some  influence  upon  your  judgment,  with 
respect  to  the  mind  with  which  Mr.  Frost  conducted 
himself  upon  that  day,  immediately  asked  him, 
what  he  meant  by  equality  ;  to  which  he  answered, 
"Why,  I  mean  no  king."  "What!  dare  you  own 
in  any  public  or  private  company  in  this  country, 
such  sentiments  ?  "  "  Yes,  I  mean  no  king  ;  the 
constitution  of  this  country  is  a  bad  one." 

Gentlemen,  what  were  the  other  particulars  of 
the  conversation  that  passed  I  am  unable  to  state 
to  you ;  but  you  will  find  the  zeal  and  anxiety  which 
a  number  of  respectable  persons  acted  with  upon 
this  occasion,  made  it  very  difficult  for  Mr.  Frost 
to  pursue  this  sort  of  conversation  any  further; 
and  in  what  manner  Mr.  Frost  left  the  coffee-house, 
and  under  what  feelings  and  apprehensions  in  the 
minds  of  those  who  were  there,  I  shall  leave  to  you 
to  collect  from  the  witnesses,  rather  than  attempt 
to  state  it  myself. 

Now,  gentlemen,  it  is  for  you  to  decide,  whether, 
in  cases  of  this  nature,  prosecutions  shall  be  carried 
on  against  defendants  who  think  proper  to  use 
language  so  contemptuous  to  the  sovereign  of  the 
country ;  and  surely,  I  need  not  in  this  place  con- 


ON   THE  TRIAL  OF  JOHN    FROST.  99 

tend,  that  anything  that  is  contemptuous  to  the 
sovereign  of  the  country,  anything  grossly  reflect- 
ing u|H)ii  the  administration  of  the  magistracy  of 
this  country,  or  j>ersons  holding  the  offices  of  mag- 
istrates, according  to  the  law  of  this  country,  such 
as  it  is,  and  such  as  I  hojic  it  will  continue  to  be, 
has  never  been  suffered  with  impunity. 

Gentlemen,  when  you  consider,  not  merely 
whether  the  prosecution  is  to  produce  a  verdict  of 
guilty,  hut  whether  the  prosecution  is  exjuilient 
and  proper,  it  is  not  unnecessary  to  advert  to  the 
circumstance's  of  the  times,  and  the  temjwr  with 
which  the  particular  defendant  may  have  proceeded, 
who  is  charged  with  guilt  by  an  indictment  brought 
before  a  jury  of  this  country. 

Gentlemen,  this  doctrine  of  equality  and  no  king 
has  been  held  in  this  country,  which  never  did,  and 
which,  I  hope,  never  will,  interfere  with  the  right 
of  free,  of  temperate,  of  sober,  and  of  ample  discus- 
sion, conducted  under  those  restraints,  upon  every 
political  subject,  in  which  the  interests  and  the 
happiness  of  Englishmen  can  be  concerned  ;  but, 
gentlemen,  when  a  doctrine  of  this  sort,  equality 
and  no  king,  a  doctrine  which  either  means  this, 
or  it  means  nothing,  that  there  shall  be  no  distinc- 
tion of  ranks  in  society,  is  brought  forward,  under 
circumstances  so  peculiar  as  those  which  attended 
the  statement  of  this  doctrine  by  the  defendant,  it 
becomes  the  dutv  of  those  who  are  entrusted  with 


SPEECH    OF    THE    ATTORNEY-GENERAL 

watching  over  the  laws  of  this  country,  under  the 
control  of  juries  who  are  finally  to  decide  between 
them  and  individuals  who  may  be  charged  with  a 
breach  of  them,  at  least  to  do  their  duty  in  stating 
this  to  the  public,  that  no  one  shall  dare  to  hold 
language  like  this,  without  being  prepared  to  tell 
a  jury  of  this  country  upon  what  grounds  he  con- 
ceives himself  justifiable  in  holding  it  under  the 
circumstances  of  the  present  case. 

Gentlemen,  advert  a  little  to  the  time ;  this  was 
in  November,  1792.  There  does  not  exist  upon 
the  face  of  the  earth,  I  hope,  a  man  more  zealously 
attached  to  this  doctrine  than  I  am.  I  mean,  that 
every  man  in  this  country,  and  in  every  country, 
has  an  equal  right  to  equal  laws,  to  an  equal  pro- 
tection of  personal  security,  to  an  equal  protection 
of  personal  liberty  ;  to  an  equal  protection  of  that, 
without  which,  it  requires  no  reasoning  to  prove, 
that  neither  personal  security,  nor  personal  liberty, 
ever  can  exist,  I  mean  to  an  equal  protection  of 
property,  that  property  which  the  labor  of  his  life, 
under  the  blessing  of  Providence,  may  have  gained 
to  him,  or  which  the  superior  kindness  of  Provi- 
dence may  have  given  him,  without  bestowing  the 
labor  of  life  in  order  to  acquire  it ;  all  this  sort  of 
equality  is  that  which  the  constitution  of  Great 
Britain  has  secured  to  every  man  who  lives  under 
it,  but  is  not  the  equality  which  was  connected 


Oy   THE  TRIAL   OF  JOHN    FROST.  101 

with  the  doctrine  no  king,  uj)on  the  Oth  of  Novem- 
ber, 1792. 

Gentlemen,  that  country,  from  which  it  ap|>ears, 
from  this  conversation,  Mr.  Frost  came,  and  to 
which  it  appears,  from  this  conversation,  that  he 
expected  to  go,  in  the  year  1781)  had  framed  what 

was  called  a  constitution,  and    almost   evervthinjj 

j 

that  was  valuable  in  it  was  borrowed  from  the  con- 
stitution of  this  country  in  which  we  live,  which 
had  provided  for  the  equal  rights  of  man  to  equal 
laws ;  it  had  laid  down  in  doctrine,  however  ill  or 
well  it  supported  the  principle,  the  equal  right  of 
every  man  to  the  protection  of  his  personal  liberty, 
of  his  j>ersonal  security,  and  of  his  property.  But 
in  1792,  that  first  year  of  equality,  as  it  was  called, 
a  different  system  of  equality,  connected  materially 
with  this  system  of  no  king,  had  been  established ; 
a  system,  which,  if  it  meant  anything,  meant  this, 
it  meant  equality  of  property,  for  all  other  equality 
had  been  before  provided  for. 

Gentlemen  of  the  jury,  it  is  every  man's  birth- 
right to  have  a  certain  species  of  equality  secured 
to  him,  but  it  neither  requires  reasoning,  nor  is  it 
consistent  with  common  sense,  and  cannot  be  con- 
sistent with  reason  and  common  sense,  because  it 
is  not  consistent  with  the  nature  of  things,  as 
established  by  the  Author  of  nature,  that  any 
other  system  of  equality  should  exist  upon  the  face 
of  the  world. 


102         SPEECH   OF   THE   ATTORNEY-GENERAL 

Gentlemen,  this  equality  recommended  by  this 
gentleman,  advisedly,  as  I  think  you  will  be  satis- 
fied in  this  transaction  of  the  6th  of  November, 
1792,  is  a  system  which  has  destroyed  all  ranks,  is 
a  system  which  has  destroyed  all  property,  is  a 
system  of  universal  proscription,  is  a  system  which 
is  as  contrary  to  the  order  of  moral  nature  as  it  is 
contrary  to  the  order  of  political  nature ;  it  is  a 
system  which  cuts  up  by  the  roots  all  the  enjoy- 
ments that  result  from  the  domestic  relations  of  life, 
or  the  political  relations  of  life ;  it  is  a  system  which 
cuts  up  by  the  roots  every  incentive  to  virtuous 
and  active  industry,  and  holds  out  to  the  man  who 
chooses  to  live  a  life  of  profligacy  and  idleness,  that 
he  may  take  from  him  who  has  exerted  through 
life  a  laborious  and  virtuous  conduct,  those  fruits 
which  the  God  of  justice,  and  every  law  of  justice, 
have  endeavored  to  secure  to  him.  This  is  the  only 
sort  of  equality  that  can  be  connected  with  this 
doctrine  of  no  king,  upon  the  6th  of  November, 
1792. 

Gentlemen,  I  am  ready  to  agree  that  where  the 
charge  is  that  words  have  been  spoken,  it  is  fit  for 
those  who  prosecute  for  the  public  to  remember 
that  in  that  situation  they  are  in  a  certain  degree 
advocates  for  the  defendant ;  for  no  man  can  do  his 
duty  who  wishes  to  press  a  defendant,  charged  upon 
the  part  of  the  public  with  acting  more  improperly 
than  he  shall  appear,  upon  the  candid  examination 


OX   THE  TRIAL  OF  JOI1X    FROST. 

of  the  circumstances,  to  have  acted ;  it  in  fit  for  me 
also  to  observe,  that  the  degree  of  criminality  of 
these  words  will  depend  very  much  upon  the  tem- 
per, the  circumstances,  the  quo  animo,  with  which 
this  gentleman  thought  proper  to  utter  them. 

Gentlemen,  I  will  not  depart  from  this  principle 
which  I  have  before  stated,  that  if  men  will  dare  to 
utter  words,  expressions  of  more  serious  import 
than  those  which  produced  the  mischief  to  which  I 
have  been  alluding  in  other  places,  it  will  be  the 
duty  of  i>ersons  in  official  situations  to  watch  for 
you  and  the  public  over  that  which  they  conceive  to 
be  a  blessing  to  you  and  the  public ;  at  least  to 
inform  those  gentlemen  that  they  must  account  for 
their  conduct ;  it  will  be  for  them,  if  they  can,  to 
account  for  it  satisfactorily. 

Gentlemen,  you  will  hear  from  the  witnesses  with 
what  temper,  with  what  demeanor,  and  in  what 
manner,  these  words  were  uttered;  and  I  allude 
again  to  that  which  will  be  described  to  you,  I 
mean  the  feelings  of  the  persons  present,  as  some 
degree  of  evidence,  which  will  have  its  due,  and 
not  more  than  its  due  weight,  in  your  minds. 

Gentlemen,  I  will  read  to  you  the  words  of  Mr. 
Justice  Forster,  as  containing  the  principle  upon 
which,  though  the  law  holds  seditious  expressions 
as  an  exceeding  high  misdemeanor,  it  has  not 
thought  proper  to  consider  them  as  a  crime  of  the 
magnitude  of  high  treason.  He  says,  "  As  to  mere 


104         SPEECH    OF   THE   ATTORNEY-GENERAL 

words,  supposed  to  be  treasonable,  they  differ 
widely  from  writings  in  point  of  real  malignity 
and  proper  evidence.  They  are  often  the  effect  of 
mere  heat  of  blood,  which  in  some  natures,  other- 
wise well  disposed,  carrieth  a  man  beyond  the 
bounds  of  decency  or  prudence.  They  are  always 
liable  to  great  misconstruction  from  the  ignorance 
and  inattention  of  the  hearers,  and  too  often  from 
a  motive  truly  criminal."  Loose  words,  therefore, 
not  relative  to  any  act  or  design,  are  not  overt  acts 
of  treason,  but  words  of  advice  or  persuasion,  and 
all  consultations  for  the  traitorous  purposes  treated 
of  in  this  chapter,  are  certainly  so.  They  are 
uttered  in  contemplation  of  some  traitorous  pur- 
pose, actually  on  foot  or  intended,  and  in  prosecu- 
tion of  it. 

Gentlemen  of  the  jury,  it  is  competent  to  Mr. 
Frost,  and  he  will  give  me  leave  to  say,  I  think  it 
is  incumbent  upon  him,  having  made  use  of  words 
of  this  sort,  to  state  to  you,  that  in  the  sentiment 
which  that  language  conveys,  he  does  not  express 
those  sentiments  by  which  his  general  conduct  in 
life  is  regulated.  For  aught  I  know,  he  is  other- 
wise well  disposed ;  and  I  am  sure,  if  evidence  of 
that  sort  is  given  to  you,  you  will  feel  the  propriety 
of  giving  to  it  not  only  a  candid,  but  you  have  my 
leave  to  give  it  the  very  utmost  consideration  that 
can  be  possibly  given  to  it.  Gentlemen,  you  ob- 
serve, too,  that  words  are  not  made  treason,  because 


ON  THE  TRIAL   OF   JOHN'   FROST.  103 

words  may  be  sworn  to  by  witnesses  from  a  motive 
truly  criminal.  You  will  be  to  judge,  whether  the 
evidence  of  the  witnesses  to  be  called  to  you  to-dny 
proceeds  from  motives  truly  criminal,  or  whether 
laudable  zeal  for  the  constitution  of  their  country 
is  not  their  only  motive  for  stating  to  you  the  con- 
duct of  this  defendant 

Gentlemen,  there  is  another  circumstance.  I  will 
say  but  a  word  to  you  upon  it ;  that  is  this :  that 
the  propriety  of  prosecuting  for  words  of  this  sort 
depends  a  great  deal  upon  the  time  and  season  at 
which  those  words  are  uttered. 

Gentlemen,  we  know  that  in  this  country  the 
legislature  found  it  necessary  to  interfere,  and  by  a 
positive  law  to  enact  that  any  man  who  should 
dare  to  affirm  that  the  King  and  Parliament  could 
not  regulate  the  succession  to  the  Crown,  should  be 
guilty  of  high  treason ;  God  forbid  the  time  should 
ever  come,  and  I  do  not  believe  it  ever  can  come, 
when  the  legislature,  acting  upon  the  same  princi- 
ple, shall  be  obliged  to  say,  that,  if  it  is  at  this 
hour  high  treason  for  men  deliberately  to  affirm 
that  the  King  and  Parliament  of  this  country  win- 
not  regulate  the  succession  to  the  Crown,  it  shall 
be  innocent  for  men  to  say  that  the  King  and 
Parliament  of  this  country  have  no  right  to  continue 
any  government  in  this  country.  Why  then, 
gentlemen,  if  this  doctrine  of  equality  and  no  king 
has  been  attended  with  such  consequences  as  it  is 


106,         SPEECH    OF    THE    ATTOKNEY-GENEKAL 

notorious  to  all  mankind  it  has  been  attended  with, 
the  notoriety  of  the  fact  renders  it  incumbent  upon 
those,  whose  duty  it  is  to  bring  such  defendant 
before  a  jury  of  their  country,  for  that  jury  to  say, 
as  between  the  country  and  individuals,  whether, 
under  such  circumstances  as  will  be  laid  before 
you,  he  is  to  be  publicly  permitted  to  hold  such 
doctrines  as  those  which  are  stated,  in  a  manner 
that  seems  to  evince  that  they  are  not  stated  for 
any  useful  purpose ;  but  that  they  are  stated  for 
the  purpose  of  trying,  whether  there  is  any  law  in 
this  country  that  will  secure  the  government  of  the 
country  from  attacks,  which  mean  nothing  but  to 
display  the  audacity  with  which  men  dare  to 
attack  that  government?  And  if  you  shall  be 
convinced,  upon  the  whole  of  the  evidence  before 
you,  that  the  case  is  such  as  I  have  stated  it  to  be, 
this  I  am  sure  of,  that  you  will  duly  weigh  the 
consequences  of  the  verdict,  however  you  shall  be 
disposed  to  give  it,  for  the  Crown,  of  for  the 
defendant;  and  I  am  sure  the  Crown,  upon  the 
temperate  consideration  of  what  the  jury  does,  will 
not  be  dissatisfied  with  that  verdict,  let  it  "be  what 
it  may.  The  constitution  of  this  country,  if  it  be 
excellent,  if  it  has  really  handed  down  to  us  those 
great  and  invaluable  blessings,  which,  I  believe, 
ninety-nine  persons  out  of  a  hundred  are  convinced 
it  has,  and  if  it  be  a  matter  of  anxiety  to  transmit 
them  to  our  posterity,  you  will  remember  that  the 


ON    THE  TRIAL   OF   JOHN    FROST.  107 

stability  of  those  blessings  finally  and  ultimately 
depends  ujxm  the  conduct  of  juries.  It  is  with 
them,  by  their  verdicts,  to  establish  their  fellow- 
subjects  in  the  enjoyment  of  those  rights;  it  is  with 
them  to  say  in  what  cases  those  rights  have  been 
invaded;  and  the  same  constitution  that  has  left  it 
to  them  to  say  in  what  cases  those  rights  have 
been  invaded,  has  also  bound  every  honest  man  to 
say,  that  when  they  have  given  their  decision  upon 
it,  they  have  acted  pro|>erly  between  the  country 
and  the  individual  who  is  charged  with  the  oflencc. 
Gentlemen,  under  these  circumstances,  I  shall 
proceed  to  lay  the  case  before  you,  and  I  have  only 
again  to  rejx?at,  if  you  shall  find,  upon  a  due  con- 
sideration of  tiiis  case,  that  this  is  an  hasty,  an 
unguarded,  and  unadvised  expression  of  a  gentle- 
man otherwise  well  disposed,  and  who  meant  no 
real  mischief  to  the  country,  you  will  be  pleased, 
with  my  consent,  to  deal  with  the  defendant  as  a 
person  under  those  circumstances  ought  to  be  dealt 
with.  I  never  will  press  a  jury  for  a  verdict,  in  a 
case  in  which,  whatever  may  be  the  strictness  of 
the  law  as  between  man  and  man,  acting  upon 
moral  and  candid  feelings,  it  ought  not  to  be  asked 
for;  and  having  given  you  my  sentiments,  I  leave 
the  defendant  in  vour  hands. 


EVIDENCE  FOR  THE  CROWN. 


JOHN  TAITT,  of  Oxford  Street,  Upholsterer,  sworn. 
Examined  by  Mr.  SOLICITOR-GENERAL. 

Q.  Do  you  know  Mr.  John  Frost? 

A.  I  never  saw  him  but  that  evening  in  my  life. 

Q.  What  evening? 

A.  The  6th  of  November  last. 

Q.  Where  were  you  that  evening? 

A.  In  the  Percy  Coffee-House. 

Q.  Who  was  with  you  ? 

A.  Mr.  Paul  Savignac. 

Q.  Were  there  any  other  persons  in  the  coffee- 
house ? 

A.  Yes,  several  gentlemen. 

Q.    Can  you  name  any? 

A.  Mr.  Yatman  was  there;  Mr.  Bullock;  there 
were  not  many  that  I  knew. 

Q.   Did  you  see  Mr.  Frost  there? 

A.  Yes. 

Q.  At  what  time? 

A.  About  ten  in  the  evening. 

Q.  Where  did  Mr.  Frost  come  from? 


ON   TIIE   TRIAL   OF   JOHN    FKOST.  109 

A.  He  came  from  a  room  above  stairs  with 
several  gentlemen  in  the  coflee-rooin. 

Q.  What  did  you  first  perceive  with  respect  to 
Mr.  Frost? 

A.  He  addressed  himself,  I  think,  first  to  Mr. 
Yatman,  but  of  that  I  urn  not  certain  ;  he  was  asked 
how  long  he  had  been  returned  from  France. 

Lord  Kenyan.  Was  he  asked  that  by  Mr.  Yat- 
man? 

A.  By  Mr.  Yatman  or  some  of  the  other  gentle- 
men. He  said  lie  was  very  lately  returned. 

Mr.  Solicitor- General.     What  did  he  say  more? 

A.  He  asked  him  what  they  were  doing  there, 
and  he  said  things  were  going  on  very  well  there; 
they  were  doing  very  well. 

Q.  Did  you  hear  him  say  anything  more? 

A.  That  he  should  very  shortly  return  there. 

Q.  What  more? 

A.  There  was  nothing  more  till  a  few  minutes 
after,  he  went  into  the  body  of  the  coffee-room,  two 
or  three  boxes  from  where  I  was.  I  heard  him 
exalting  his  voice,  and  he  was  for  equality.  "I 
am  for  equality."  Upon  which  I  got  off  my  seat, 
and  I  went  forward  and  inquired,  "Who  are  you, 
sir?" 

Lord  Kenyan.     You  asked  him? 

A.  Yes,  because  I  did  not  know  him.  Mr.  Yat- 
man answered,  That  is  Mr.  Frost;  upon  which  I 
asked  him  how  lie  dared  utter  to  such  words.  He 


110  EVIDENCE   FOB,   THE   CROWN 

still  continued,  "I  am  for  equality  and  no  king." 
Mr.  Yatman  asked  him  if  he  meant  no  king  in  this 
country,  and  he  said  yes,  no  king,  or  no  kings;  I 
rather  think  it  was  in  the  plural  number.  That 
the  constitution  of  this  country  was  a  very  bad 
one. 

Q.  Did  he  say  anything  more  ? 

A.  He  said  nothing  more.  I  said  he  ought  to 
be  turned  out  of  the  coffee-room ;  upon  which  he 
walked  up  the  room  and  placed  his  back  to  the 
fire,  and  wished,  I  believe,  rather  to  retract,  if  he 
could  have  retracted,  what  he  had  said;  but  he 
still  continued,  he  was  for  no  king,  and  he  was  for 
equality.  He  quitted  the  room  very  shortly  after 
by  a  general  hiss  from  all  the  company. 

Q.  How  long  did  he  continue  there  ? 

A.  I  suppose  not  above  five  minutes. 


JOHN  TAITT — Cross-Examined  by  Mr.  ERSKINE. 

Q.  You  went,  I  suppose,  to  the  coffee-house,  just 
in  the  ordinary  course  of  your  recreation,  I  take 
for  granted  ? 

A.  It  is  a  coffee-house  I  very  seldom  go  to. 

Q.  How  came  you  there  that  night  ? 

A.  I  went  there  to  sup. 

Q.  You  have  been  there  often? 

A.  Very  often. 


ON   THE   TRIAL   OF   JOHN    FROST.  Ill 

Q.  Then  of  course  you  went  to  have  your  supper 
and  read  the  newspaper? 

A.  Exactly  so. 

Q.  I  take  it  you  remember  all  the  conversation 
that  passed  between  Mr.  Savignac  and  you  that 
night  ? 

A.  I  believe  Mr.  Savignac  wrote  down  to  the 
same  effect. 

Q.  I  dare  say  you  wrote  down  this? 

A.  I  wrote  none  down. 

Q.  But  do  you  recollect  the  conversation  be- 
tween Mr.  Savignac  and  you? 

A.  No. 

Q.  Mr.  Frost  had  been  above  stairs  ? 

A.  Yes. 

Q.  With  whom  he  was  dining  you  do  not  know? 

A,  No. 

Q.  Can  you  get  out  of  that  room  without  going 
through  the  coffee-room  ? 

A.  I  don't  know. 

Q.  Don't  you  know  the  contrary? 

A.  I  do  not. 

Q.  You  must  have  seen  people  coming  from 
above  stairs,  having  frequented  that  house? 

A.  Yes. 

Q.  Then  you  know  the  way  from  up  stairs  is 
through  the  coffee-room? 

A.  Yes. 


112        EVIDENCE  FOR  THE  CROWN 

Q.  You  say  you  are  not  certain  that  Mr.  Frost 
addressed  himself  first  to  Mr.  Yatman? 

A.  No,  I  am  not. 

Q.  The  first  of  the  conversation,  you  will  ven- 
ture to  swear  to,  was  a  question  put  by  Yatman  to 
him? 

A.  Yes. 

Q.  Will  you  venture  to  swear  that  when  Mr. 
Frost  came  down  stairs,  he  was  not  going  straight 
through  the  coffee-house  into  the  street,  till  Mr. 
Yatman  stopped  him  and  asked  him  that  question? 

A.  That  I  cannot  say. 

Q.  What  time  was  it? 

A.  About  ten  in  the  evening,  rather  before  than 
after. 

Q.  Mr.  Frost  was  perfectly  sober,  I  suppose? 

A.  I  cannot  say  whether  he  was  or  not. 

Q.  There  was  a  good  dinner,  where  a  number 
of  gentlemen  had  been  present? 

A.  I  cannot  say. 

Q.  You  saw  other  gentlemen  come  down? 

A.  Yes. 

Q.  Were  they  not  all  drunk? 

A.  They  might  be ;  I  don't  know. 

Q.  He  asked  Mr.  Frost  how  long  he  had  been 
from  France,  and  he  told  him  he  was  lately 
returned;  the  conversation  went  about  France? 

A.  Yes. 

Q.  Will  you  venture  to  swear,  the  conversation 


ON   THE  TRIAL  OF  JOHN   FROST.  113 

did  not  continue  between  Mr.  Yatraan  ami  Mr. 
Frost  from  the  time  it  first  began  till  the  time  you 
heard  him  say  he  was  for  equality  ? 

A.  I  cannot  say;  I  did  not  attend  to  it  till  he 
exalted  his  voice,  and  said,  he  was  for  equality. 

Q.  Then  what  question  was  put  to  him,  and 
what  turn  the  conversation  was  taking,  you  don't 
know,  till  you  heard  him  exalt  his  voice? 

A.  No. 

Q.  Then  you  did  not  know  whether  the  conver- 
sation respected  France  or  England ;  but  hearing 
the  word  equality,  you  was  all  a-gog? 

A.  No,  I  was  not  all  a-gog. 

Q.  You  wjis  in  another  part  of  the  coffee-house? 

A.  I  was  in  the  next  box. 

Q.  By  your  own  account  you  don't  appear  to 
have  been  very  attentive ;  but  hearing  his  voice 
louder  than  before,  you  immediately  went  up,  and 
asked  him  how  he  dared  to  utter  such  words? 

A.  Yes. 

Q.  You  said  that  in  a  tone  of  voice  that  showed 
you  felt  yourself  insulted  ? 

A.  Yes. 

Q.  Before  you  knew  to  what  his  words  alluded  ; 
for  he  had  been  talking  about  France,  you  know, 
an<l  how  things  went  on  there,  and  you  immediately 
then  interfered.  I  believe  several  other  persons 
interfered  in  the  same  insulting  manner? 

A.  Yes,  I  believe  they  did. 
8  B 


114        EVIDENCE  FOE  THE  CEOWN 

Q.  At  this  time  you  make  use  of  an  expression 
which  probably  may  be  owing  to  my  dullness,  but 
I  cannot  understand  you.  You  said,  he  seemed  to 
wish  to  retract,  but  still  continued  to  say  the  same 
thing  over  again? 

A.  He  did  not  say  much. 

Q.  You  said,  he  ought  to  be  put  upon  the  fire, 
you  know? 

A.  Yes. 

Q.  Somebody  talked  of  sending  for  a  constable? 

A.  Yes;  and  he  said  every  man  there  was  a 
constable. 

Mr.  Solicitor-  General.  Did  Mr.  Frost  appear  to 
be  disabled  by  liquor? 

A.  If  I  had  known  him  before,  I  should  have 
been  better  able  to  say,  but  I  think  there  was 
hardly  a  doubt  but  he  might ;  but  as  I  don't  know 
I  cannot  say  whether  he  was  or  no,  but  I  rather 
believe  he  was. 

Q.  Did  he  repeat  the  words  more  than  once  ? 

A.  I  don't  think  he  did. 

Q.  You  said,  he  wished  to  retract,  but  still  con- 
tinued, that  he  was  for  no  king  and  equality? 

A.  He  did  not  repeat  that  twice. 

Q.  What  did  you  mean  by  saying  he  wished  to 
retract? 

A.  I  rather  thought  he  was  sorry  for  what  he 
had  said ;  that  is  what  I  meant  by  it. 


OX   THE  TRIAL  OF  JOHN   FROST.  115 

PAUL  SAVIGXAC,  of  Carshalton,  in  Surrey,  sworn. 
Examined  bv  MR.  BEARCROFT. 

m 

Q.  Do  you  remember  being  at  the  Percy  coffee- 
house with  Mr.  Tajtt,  upon  the  Gth  of  November 
last  ? 

A.  Yes. 

Q.  Do  you  remember  seeing  Mr.  Frost  there? 

A.  I  saw  a  person  whom  they  called  Mr.  Frost, 
but  I  never  saw  him  before  nor  since. 

Q.  That  gentleman  that  sits  there  ?  [pointing  to 
Mr.  Frost.] 

A.  I  cannot  say. 

Q.  What  time  in  the  evening  did  you  see  him  in 
the  room  ? 

A.  Between  nine  and  ten. 

Q.  Did  you  hear  any  particular  expressions  he 
made  use  of? 

A.  When  he  passed  the  box  I  was  sitting  in,  he 
was  in  the  company  of  Mr.  Yatman ;  and  I  heard 
him  say,  "  I  am  for  equality  and  no  king." 

Lord  Kenyan.     What  did  he  say  ? 

A.  He  was  not  in  the  box;  he  was  walking  up 
the  middle  of  the  coffee-room,  and  he  said,  "I  am 
for  equality  and  no  king."  I  heard  Mr.  Yatman, 
pressing  his  brow,  say,  "\Vli:it!  «  ^mlit  v  :m<l  no 
king  in  this  country"?  Upon  which  Mr.  Frost 
answered,  "  Yes,  no  king;  there  ought  to  be  no 


116      EVIDENCE  FOR  THE  CROWN 

king."  I  heard  nothing  more  in  conversation  pass. 
I  stepped  from  the  box,  and  asked  him  how  he 
dared  to  hold  a  doctrine  of  that  kind  in  a  public 
coffee-room?  He  made  some  reply  as  before,  that 
he  was  for  equality  and  no  king.  I  told  him  if  he 
was  not  under  the  protection  of  .the  very  King  he 
was  then  reviling,  I  would  kick  him  out  of  the 
coffee-room.  Upon  which  he  asked  me  if  I  doubted 
his  courage.  I  told  him,  certainly  he  would  not 
have  made  use  of  such  expressions  without,  because 
I  should  have  supposed  it  to  be  an  insult  to  make 
use  of  such  expressions  in  a  public  coffee-house. 
He  was  then  handled  by  other  gentlemen,  and  I  sat 
down;  but  very  soon  afterwards  he  left  the  room, 
under  the  execrations  and  hisses  of  all  the  room. 

Q.  Did  you  see  him  when  he  first  came  down 
into  the  public  coffee-room? 

A.  I  don't  know  that  I  might.  I  saw  him  soon 
after  I  saw  Mr.  Yatman. 

Q.  Recollect  yourself,  and  tell  me  how  long  you 
can  speak  to  it,  as  near  as  you  can,  recollect  how 
long  he  was  in  the  public  coffee-room  before  he 
went  away. 

A.  Not  ten  minutes;  not  more  I  am  sure. 

Q.  I  would  ask  you  whether  his  conduct  and 
these  expressions  of  his  produced  any,  and  what 
kind  of  notice  in  the  company? 

A.  That  every  gentleman  there  was  under  the 


ON   THE  TRIAL  OF  JOHN   FROST.  117 

game  idea  with  me,  that  he  ought  to  be  kicked  out 
of  the  coffee-room. 


PAUL  SAVIGNAC — cross-examined  by  Mr.  Serjeant 

RUNNINGTON. 

Q.  You  don't  live  in  that  neighborhood,  do 
you? 

A.  No,  in  Carshalton,  in  Surrey. 

Q.  How  long  had  you  been  in  the  coffee-room, 
before  you  saw  Mr.  Frost  come  in  ? 

A.  He  was  up  stairs. 

Q.  Was  he  obliged  to  come  through  the  coffee- 
room  from  up-stairs  to  go  into  the  street  ? 

A.  I  cannot  say. 

Q.  How  far  were  you  from  Mr.  Yatman  ? 

A.  They  were  walking  up  the  coffee-room  close 
to  me. 

Q.  Did  anything  pass  from  Mr.  Yatman  to  Mr. 
Frost? 

A.  Yes. 

O.   IVt'mv  Mr.  I-Yi»-t  -]  «>kt-  ;it  ;ill  '.' 

A.  No. 

Q.  Do  you  recollect  Mr.  Yatman  saying  as  he 
come  down  stairs, "  Well,  Mr.  Equality,  where  are 
you  going  to  ?  " 

A.  No,  I  do  not 


118        EVIDENCE  FOE  THE  CEOWN 

MATTHEW  YATMAN,  of  Percy  Street,  Sworn. 
Examined  by  ME.  BALDWIN. 

Q.  Were  you  at  the  Percy  Coffee-House  on  the 
6th  of  November,  in  the  evening? 

A.  I  was. 

Q.  Did  you  see  Mr.  Frost  there? 

A.  I  did. 

Q.  You  have  long  known  Mr.  Frost? 

A.  Mr.  Frost  was  in  the  commission  for  watch- 
ing and  lighting  the  street  in  which  I  live,  and  I 
am  one  of  the  commissioners. 

Q.  Tell  us  what  passed  between  Mr.  Frost  and 
you  at  the  Percy  Coffee-House  ? 

A.  He  came  from  the  room  where  he  dined  into 
the  coffee-room;  he  came  up  to  where  I  was,  and 
knowing  he  was  lately  come  from  France,  I  said, 
Well,  how  do  they  go  on  in  France?  He  seemed 
to  be  stimulated  at  the  question,  and  he  extended 
his  arm,  and  exalted  his  voice  sufficiently  to  be 
heard  up-stairs,  if  the  door  had  been  open,  "lam 
for  equality  and  no  king."  "What!"  says  I,  "no 
king  in  this  country  ?  "  "  No  king ! "  as  loud  as  he 
could  halloo. 

Q.  Did  anything  more  pass  between  you  and 
your  old  friend? 

A.  No,  I  had  enough.  Upon  this,  the  gentle- 
men in  the  coffee-room  seemed  to  be  stimulated 


ON   THE  TRIAL   OF  JOHN    FROST.  110 

with  anger,  and  Mr.  Taitt  ami  Mr.  Savignac  got 
up,  and  so  enraged  at  him,  I  supposed  they  would 
have  kicked  him  out  of  the  coffee-room,  and  I 
believe  it  would  have  been  done,  but  one  gentle- 
man got  him  to  the  door,  and  prevailed  on  him  to 
go  out 

Q.  Did  he  say  anything  more  that  you  recol- 
lect? 

A.  No,  it  was  all  confusion  after  that. 

Q.  And  the  manner  of  it  was  as  you  have  des- 
cribed it? 

A.  Yes. 

Q.  With  vehemence? 

A.  Yes ;  he  was  very  warm. 


MATTHEW  YATMAN — cross-examined  by  Mr. 
ERSKINE. 

Q.  It  was  all  general  confusion  after  Mr.  Taitt 
had  interfered? 

A.  Yes. 

Q.  I  believe  Mr.  Frost  said  this  extremely  loud, 
that  he  might  have  been  heard  up  stairs? 

A.  I  am  just  of  that  opinion. 

Q.  And  then  it  was  that  Mr.  Taitt  interfered  ? 

A.  Yes. 

Q.  After  that  was  all  confusion  ? 

A.  Yes. 


120  EVIDENCE   FOB,   THE   CROWJST 

Mr.  Baldwin.  Though  there  was  confusion  after- 
wards, there  was  not  when  he  spoke  those  words? 

A.  No. 

Q.  Did  he  speak  it  coolly  or  otherwise,  except- 
ing the  warmth  with  which  you  have  spoken? 
How  was  he  in  his  understanding? 

A.  He  spoke  it  very  distinctly,  and  wished  to 
be  heard  by  everybody. 

Q.  Was  he  sober  or  no? 

A.  Certainly  he  was  not  drunk. 

Mr.  Erslcine.     It  was  ten  o'clock,  was  it  not  ? 

A.  Between  nine  and  ten.  I  don't  know  whether 
it  was  quite  ten. 

Q.  Do  you  mean  to  say  he  was  just  as  sober  as 
he  might  be  at  twelve  o'clock  in  the  day? 

A.  That  he  walked. 

Q.  Do  you  mean  to  stake  your  character  and 
your  honor  before  the  jury,  by  saying  he  was  as 
sober  as  if  you  had  seen  him  before  dinner? 

A.  I  don't  say  he  was  sober. 

Q.  I  ask  you  whether  you  mean  to  stake  your 
character  and  your  honor  before  the  jury,  by  say- 
ing that  he  was  as  sober  as  at  twelve  o'clock  at 
day? 

A.  I  should  not  have  known  that  he  was  not  bv 

«/ 

his  conversation  and  his  walk.  Whether  he  was 
in  his  right  senses  when  he  used  those  words,  is 
another  thing. 


ON  THE  TRIAL  OF  JOHN    FROST.  121 

Q.  Do  you  mean  to  wiy  he  spoke  in  the  manner 
and  the  pitch  of  voice  like  a  sober  man  ? 
A.   He  was  stimulated. 
Q.    He  extended  his  arm? 
-1.    Ye*. 

Q.  You  think  that  a  mark  of  sobriety,  do  you  ? 
A.  I  do  not  think  it  a  mark  of  good  sense. 


BULLOCK,  of        — ,  sworn.  —  Examined   by 

Mr.  WOOD. 

Q.  Were  you  at  the  Percy  coffee-house  on  the 
6th  of  November  last  ? 

A.  I  was. 

Q.  Did  you  see  Mr.  Frost  there  ? 

A.  I  did. 

Q.  Be  so  good  as  to  tell  us  whether  you  heard 
him  say  anything,  and  what  it  was. 

A.  I  did  not  attend  to  the  conversation  till  I 
heard  what  I  thought  very  treasonable  words,  upon 
which  I  committed  them  to  paper.  I  wrote  it  at 
the  time  with  an  idea  of  having  it  signed. 

Q.  Be  so  good  as  to  read  it  slowly. 

A.  [Reads.]  Percy  coffee-house,  (>th  of  Novem- 
ber, 1792.  We,  the  undermentioned,  do  hereby 
certify,  that  at  about  ten  o'clock  this  evening,  Mr. 
John  Frost  came  into  this  coffee-room,  and  did 
then,  and  in  our  presence,  openly  declare,  that  he 


122        EVIDENCE  FOE  THE  CROWN 

wished  to  see  equality  prevail  in  this  country,  and 
no  king,  in  a  loud  and  factitious  way;  and  upon 
being  asked  whether  he  meant  that  there  should 
be  no  king  in  this  country,  he  answered  yes.  That 
is  all  I  recollect  of  seditious  words. 

Lord  Kenyan.  You  put  this  down  with  a  view 
that  they  might  have  been  signed. 

A.  I  did. 

Mr.  Wood.  Was  Mr.  Frost  drunk  or  sober  at 
that  time  ? 

A.  I  never  saw  Mr.  Frost  before  that  time;  but 
he  did  not  appear  to  me  to  be  a  man  in  liquor; 
not  in  the  least  so. 

Q.  Have  you  ever  seen  him  at  any  other  time  ? 

A.   I  have  frequently  since. 

Q.  Where  may  that  be? 

A.  In  Paris. 

Q.  How  soon  after  this  was  it? 

A.  I  arrived  in  Paris  on  the  27th  of  December, 
I  think,  to  the  best  of  my  recollection;  and  I  saw 
him  a  few  days  after  my  arrival  there. 

Mr.  Erskine.  We  have  surely  nothing  to  do 
with  what  passed  in  Paris. 

Lord  Kenyan.  I  think  I  may  hear  it;  if  words 
in  this  country  constituting  a  different  offence,  that 

might  be  prosecuted  here ;  but  this  is  quite  a 

new  question.  In  common  slander  this  is  always 
allowed. 

Mr.  Erskine.     I  confess  I  cannot  help  entering 


ON   THE  TRIAL  OF  JOHN   FROST.  123 

my  protest  against  it,  and  upon  this  plain  princi- 
ple, that  it  may  be  recollected  that  that  question 
did  arise,  and  that  the  defendant  may  have  the 
benefit  of  it. 

Mr.  Attorney-General.  I  believe  Mr.  Erskine  has 
misunderstood  what  I  meant  by  putting  the  ques- 
tion. I  meant  merelv  whether  he  had  ever  seen  Mr. 

v 

Frost  at  any  future  time  anywhere,  and  whether, 
from  any  conversation  he  had  with  him,  he  can 
take  upon  him  to  judge  of  the  state  in  which  Mr. 
Frost  was  upon  the  6th  of  November,  1792 ;  that 
is,  comparing  his  modes  of  conversing  at  future 
times,  near  or  distant  from  that  6th  of  November, 
1792.  I  don't  wish  to  ask  a  single  question  respect- 
ing Mr.  Frost's  conversation  since  that  time,  what- 
ever the  law  may  be  upon  the  subject.  I  have  a 
still  more  important  reason  for  not  asking  it 

Mr.  Erskine.  My  objection  is  by  no  means  cured, 
but  still  more  imj>ortant.  The  question  was  this : 
whether  the  witness  shall  be  allowed  to  say  from 
conversations  with  Mr.  Frost — 

Mr.  Bullock.  I  believe  I  can  save  you  a  great 
deal  of  trouble.  I  know  nothing  about  it. 

Lord  Kenyon.  I  am  clearly  of  opinion  that  it 
might  have  been  asked  in  the  way  in  which  the 
Attorney-General  put  it,  if  by  his  general  deport- 
ment afterwards  he  could  judge  whether  he  was  in 
liquor  or  not.  I  have  not  the  least  particle  of 
doubt 


124  EVIDENCE   FOE   THE   CROWN. 

Mr.  Erslcine.  Neither  have  I  certainly  upon  that 
point,  my  lord. 

Q.  Where  have  you  seen  him  since? 

A.  At  Calais  the  first  time. 

Lord  Kenyan.  I  will  not  have  all  his  life  and 
conversation  brought  forward;  I  would  not  have 
him  give  evidence  from  conjecture  or  knowledge 
of  what  he  was  doing  at  Paris;  all  that  I  mean  to 
allow  is,  whether  from  his  general  deportment  at 
other  times  he  thinks  he  was  sober  at  that  time? 

Q.  How  many  times  might  you  see  him,  think 
you? 

A.  It  is  impossible  to  say.  I  have  frequently 
seen  him  at  a  coffee-house. 

Q.  Are  you  able  to  judge  from  that,  whether  he 
was  sober  or  not  when  you  saw  him  at  Percy  street 
coffee-house  ? 

A.  He  was  what  you  may  call  a  sober  man. 

Mr.  Erslcine.  Was  he  like  a  man  that  had  been 
drinking  ? 

A.  Drinking  moderately. 

Q.  Two  bottles  of  port;  what  do  you  say  to 
that? 

A.  I  cannot  say. 

Q.  It  is  very  difficult  to  judge  by  weights  and 
scales  ? 

A.  I  thought  he  was  sober  by  his  manner. 


SPEECH    OF    MR.    ERSKIXE. 


GENTLEMEN  OF  THE  JURY  :  I  rise  to  address  you 

9 

under  circumstances  so  j>eculiar  that  I  consider 
myself  entitled,  not  only  for  the  defendant  ar- 
raigned before  you,  but  j>ersonally  for  myself,  to 
the  utmost  indulgence  of  the  court.  I  came  down 
this  morning  with  no  other  notice  of  the  duty  cast 
upon  me  in  this  cause,  nor  any  other  direction  for 
the  premeditation  necessary  to  its  performance, 
than  that  which  I  have  ever  considered  to  be  the 
safest  and  the  best,  namely,  the  records  of  the 
court,  as  they  are  entered  here  for  trial,  where  for 
the  ends  of  justice  the  charge  must  always  appear 
with  the  most  accurate  precision,  that  the  accused 
may  know  what  crime  he  is  called  upon  to  answer, 
and  his  counsel  how  he  may  defend  him.  Finding, 
therefore,  upon  the  record  which  arraigns  the  de- 
fendant, a  simple,  unqualified  charge  of  seditious 
words,  unconnected,  and  uncomplicated  with  any 
extrinsic  events,  I  little  imagined  that  the  conduct 
of  my  client  was  to  receive  its  color  and  construc- 
tion from  the  present  state  of  France,  or  rather  of 
all  Europe,  as  affecting  the  condition  of  England ; 
I  little  dreamed  that  the  Gth  day  of  November, 


126  SPEECH    OF   ME.    ERSKIKE 

which,  reading  the  indictment,  I  had  a  right  to 
consider  like  any  other  day  in  the  calendar,  was  to 
turn  out  an  epoch  in  this  country,  for  so  it  is  styled 
in  the  argument,  and  that  instead  of  having  to  deal 
with  idle,  thoughtless  words,  uttered  over  wine, 
through  the  passage  of  a  coffee-house,  with  what- 
ever at  any  time  might  belong  to  them,  I  was  to 
meet  a  charge,  of  which  I  had  no  notice  or  concep- 
tion, and  to  find  the  loose  dialogue  which,  even 
upon  the  face  of  the  record  itself,  exhibits  nothing 
more  than  a  casual  sudden  conversation,  exalted  to 
an  accusation  of  the  most  premeditated,  serious, 
and  alarming  nature,  verging  upon  high  treason 
itself,  by  its  connection  with  the  most  hostile  pur- 
poses to  the  state,  and  assuming  a  shape  still  more 
interesting  from  its  dangerous  connection  with  cer- 
tain mysterious  conspiracies,  which,  in  confederacy 
with  French  republicans,  threaten,  it  seems,  the 
constitution  of  our  once  happy  country. 

Gentlemen,  I  confess  myself  much  unprepared 
for  a  discussion  of  this  nature,  and  a  little  discon- 
certed at  being  so ;  for  though,  as  I  have  said,  I 
had  no  notice  from  the  record,  that  the  politics  of 
Europe  were  to  be  the  subject  of  discourse,  yet 
experience  ought  to  have  taught  me  to  expect  it ; 
for  what  act  of  government  has  for  a  long  time 
past  been  carried  on  by  any  other  means  ?  when 
or  where  has  been  the  debate,  or  what  has  been 
the  object  of  authority,  in  which  the  affairs  of 


ON   THE  TRIAL  OF  JOHN*   FKOST.  127 

France  have  not  taken  the  lead?  The  affaire  of 
France  have  indeed  become  the  common  stalking- 
horse  for  all  state  purjxjses.  1  know  the  honor  of 
my  learned  friend  too  well  to  impute  to  him  the 
introduction  of  them  for  any  improper  or  dishonor- 
able purpose;  I  am  sure  he  connects  them  in  his 
own  mind  with  the  subject,  and  thinks  them 
legally  before  you — I  am  bound  to  think  so,  be- 
cause the  general  tenor  of  his  address  to  you  has 
been  manly  and  candid ;  but  I  assert,  that  neither 
the  actual  condition  of  France,  nor  the  stipjKwed 
condition  of  this  country,  are,  or  can  be,  in  any 
shape  before  you,  and  that  upon  the  trial  of  this 
indictment,  supported  only  by  the  evidence  you 
have  heard,  the  words  must  be  judged  of  as  if 
spoken  by  any  man  or  woman  in  the  kingdom,  at 
any  time  from  the  Norman  conquest,  to  the  mo- 
ment I  am  addressing  you. 

I  admit,  indeed,  that  the  particular  time  in  which 
words  are  spoken,  or  acts  committed,  may  most 
essentially  alter  their  quality  and  construction,  and 
give  to  expressions,  or  conduct,  which  in  another 
season  might  have  been  innocent,  or  at  least  indif- 
ferent, the  highest  and  most  enormous  guilt;  but 
for  that  very  reason  the  supjwsed  particularity  of 
the  present  times  as  applicable  to  the  matter  before 
you,  is  absolutely  shut  out  from  your  consideration, 
shut  out  upon  the  plainest  and  most  obvious  prin- 
ciple of  justice  and  law ;  because,  wherever  time 


128  SPEECH   OF   ME.    EESKINE 

or  occasion  mix  with  an  act,  affect  its  quality,  and 
constitute  or  enhance  its  criminality,  they  then 
become  an  essential  part  of  the  misdemeanor  itself, 
and  must  consequently  be  charged  as  such  upon 
the  record.  I  plainly  discover  I  have  his  lordship's 
assent  to  this  proposition.  If  therefore  the  Crown 
had  considered  this  cause  originally  in  the  serious 
light  which  it  considers  it  to-day,  it  has  wholly 
mistaken  its  course.  If  it  had  considered  the  gov- 
ernment of  France  as  actively  engaged  in  the 
encouragement  of  disaffection  to  the  monarchy  of 
England,  and  that  her  newly-erected  republic  was 
set  up  by  her  as  the  great  type  for  imitation  and 
example  here ;  if  it  had  considered  that  numbers, 
and  even  classes  of  our  countrymen  were  ripe  for 
disaffection,  if  not  for  rebellion,  and  that  the  de- 
fendant, as  an  emissary  of  France,  had  spoken  the 
words  with  the  premeditated  design  of  undermin- 
ing our  government ;  this  situation  of  things  might 
and  ought  to  have  been  put  as  facts  upon  the 
record,  and  as  facts  established  by  evidence,  instead 
of  resting  as  they  do  to-day  upon  assertion.  By 
such  a  course  the  crime  indeed  would  have  become 
of  the  magnitude  represented ;  but  on  the  other 
hand,  as  the  conviction  could  only  have  followed 
from  the  proof,  the  defendant  upon  the  evidence  of 
to-day  must  have  an  hour  ago  been  acquitted ;  since 
not  a  syllable  has  been  proved  of  any  emissaries 
from  France  to  debauch  our  moriarchial  principles ; 


ON    THE  TRIAL  OF  JOHN    FROST.  120 

not  even  an  insinuation  in  evidence,  that,  if  there 
were  any  such,  the  defendant  was  one  of  them ; 
not  a  syllable  of  proof,  either  directly  or  indirectly, 
that  the  condition  of  the  country,  when  the  words 
were  uttered,  differed  from  its  ordinary  condition 
in  times  of  prosperity  and  |>eaee.  It  is  therefore 
a  new  and  most  compendious  mode  of  justice,  that 
the  facts  which  wholly  constitute  or  at  all  events 

M 

lift  up  the  dignity  and  danger  of  the  offence,  should 
not  be  charged  upon  record,  l>ecause  they  could  not 
be  proved  ;  but  are  to  be  taken  for  granted  in  the 
argument,  so  as  to  produce  the  same  effect  upon 
the  trial,  and  in  the  punishment,  as  if  they  had 
been  actually  charged  and  completely  established. 
If  the  affairs  of  France,  as  they  are  supposed  to 
affect  this  country,  had  been  introduced  without  a 
warrant  from  the  charge  or  the  evidence,  I  should 
have  been  wholly  silent  concerning  them  ;  but  as 
they  have  been  already  mixed  with  the  subject  in 
a  manner  so  eloquent  and  effecting,  as  too  probably 
to  have  made  a  strong  impression,  it  becomes  my 
duty  to  endeavor  at  least  to  remove  it 

The  late  revolutions  in  France  have  been  repre- 
sented to  you  as  not  only  ruinous  to  their  authors, 
and  to  the  inhabitants  of  that  country,  but  as 
likely  to  shake  and  disturb  the  principles  of  this 
and  all  other  governments;  you  have  been  told, 
that  though  the  English  people  are  generally  well 
affected  to  their  government,  ninety-nine  out  of  one 
9  B 


130  SPEECH   OF   MR.    EESKINE 

hundred,  upon  Mr.  Attorney-General's  own  state- 
ment, yet  that  wicked  and  designing  men  have 
long  been  laboring  to  overturn  it,  and  that  noth- 
ing short  of  the  wise  and  spirited  exertions  of  the 
present  government,  of  which  this  prosecution  is, 
it  seems,  one  of  the  instances,  has  hitherto  averted, 
or  can  continue  to  avert  the  dangerous  contagion, 
which  misrule  and  anarchy  are  spreading  over  the 
world ;  that  bodies  of  Englishmen,  forgetting  their 
duty  to  their  own  country  and  its  constitution, 
have  congratulated  the  convention  of  France  upon 
the  formation  of  their  monstrous  government ;  and 
that  the  conduct  of  the  defendant  must  be  con- 
sidered as  a  part  of  a  deep-laid  system  of  disaffec- 
tion, which  threatened  the  establishment  of  this 
kingdom. 

Gentlemen,  this  state  of  things  having  no  sup- 
port whatever  from  any  evidence  before  you,  and 
resting  only  upon  opinion,  I  have  an  equal  right 
to  mine;  having  the  same  means  of  observation 
with  other  people  of  what  passes  in  the  world ; 
and  as  I  have  a  very  clear  one  upon  this  subject,  I 
will  give  it  you  in  a  very  few  words. 

I  am  of  opinion,  then,  that  there  is  not  the 
smallest  foundation  for  the  alarm  which  has  been 
so  industriously  propagated ;  in  which  I  am  so  far 
from  being  singular,  that  I  verily  believe  the 
authors  of  it  are  themselves  privately  of  the  same 
way  of  thinking ;  but  it  was  convenient  for  certain 


OX   THE  TRIAL   OF   JOHN    FROST.  131 

persons,  who  had  changed  their  principles,  to  find 
some  plausible  pretext  fur  changing  them ;  it  was 
convenient  for  those,  who  when  out  of  jn>wer  had 
endeavored  to  lead  the  public  mind  to  the  neces- 
sity of  reforming  the  corruptions  of  our  own  gov- 
ernment, to  find  any  reasons  for  their  continuance 
and  conformation,  when  they  operated  as  engines 
to  support  themselves  in  the  exercise  of  powers, 
which  were  only  odious  when  in  other  hands.  For 
this  honorable  purjxjse  the  sober,  reflecting,  and 
temperate  character  of  the  English  nation,  was  to 
be  represented  as  fermenting  into  sedition,  and  into 
an  insane  contempt  for  the  revered  institutions  of 
their  ancestors;  for  this  honorable  purpose  the 
wisest  men,  the  most  eminent  for  virtue,  the  most 
splendid  in  talents,  the  most  inde|x?ndent  for  rank 
and  property  in  the  country,  were,  for  no  other 
crime  than  their  perseverance  in  those  sentiments 
which  certain  persons  had  originated  and  aban- 
doned, to  be  given  up  to  the  licentious  pens  and 
tongues  of  hired  defamation,  to  be  stabled  in  the 
dark  by  anonymous  accusation,  and  to  be  held  out 
to  England  and  to  the  whole  world,  as  conspiring 
under  the  auspices  of  cut-throats,  to  overturn  every- 
thing sacred  in  religion,  and  venerable  in  the 
ancient  government  of  our  country.  Certain  it  is, 
that  the  whole  system  of  government,  of  which  the 
business  we  are  now  engaged  in  is  no  mean  speci- 
men, came  upon  the  public  with  the  suddenness  of 


132  SPEECH    OF    MR.    EESKINE 

a  clap  of  thunder,  without  one  act  to  give  it  foun- 
dation, from  the  very  moment  that  notice  was 
given  of  a  motion  in  Parliament,  to  reform  the 
representation  of  the  people.  Long,  long  before 
that  time  the  Rights  of  Man  and  other  books, 
though  not  complained  of,  had  been  written; 
equally  long  before  it,  the  addresses  to  the  French 
government,  which  have  created  such  a  panic, 
had  existed  ;  but  as  there  is  a  give  and  take  in  this 
world,  they  passed  unregarded.  Leave  but  the 
practical  corruptions,  and  they  are  contented  to 
wink  at  the  speculations  of  theorists,  and  the  com- 
pliments of  public-spirited  civility  ;  but  the  moment 
the  national  attention  was  awakened  to  look  at 
things  in  practice,  and  to  seek  to  reform  corrup- 
tions at  home,  from  that  moment,  as  at  the  ringing 
of  a  bell,  the  whole  hive  began  to  swarm,  and  every 
man  in  his  turn  has  been  stung. 

This,  gentlemen,  is  the  real  state  of  the  case ; 
and  I  am  so  far  from  pushing  the  observation 
beyond  its  bearing  for  the  defence  of  a  client,  that 
I  am  ready  to  admit  Mr.  Frost  in  his  conduct  has 
not  been  wholly  invulnerable,  and  that  in  some 
measure  he  has  brought  this  prosecution  upon  him- 
self. 

Gentlemen,  Mr.  Frost  must  forgive  me  if  I  take 
the  liberty  to  say,  that,  with  the  best  intentions 
in  the  world,  he  formerly  pushed  his  observations 
and  conduct  respecting  government  further  than 


OX   THE  TRIAL  OF  JOHN   FROST.  133 

many  would  be  disposed  to  follow  him.  I  cannot 
disguise  or  conceal  from  you,  that  I  find  his  name 
in  this  green  book,*  as  associated  with  Mr.  Pitt 

*  Mr.  Erakine  read  the  following  minutes  from  Mr.  Pitt's  hand- 
writing: 

TIIATCHKD  HOUSE  TAVEK.N,   May  IStti,  1782. 

At  *  numerous  and  respectable  meeting  of  members  of  Parliament, 
.friendly  to  a  constitutional  reformation,  and  of  members  of  several 
committees  of  counties  and  cities : 

The  Duke  of  Richmond,  Sir  C.  Turner,  Dr.  John  Jebb, 

Lord  Surrey,  Mr.  Taylor,  Major  Cartwright, 

Lord  Mah. .11,  Mr.  Amherst,  Mr.  Hill, 

The  Lord  Mayor,  Mr.  Duncombe,  Mr.  Baynes, 

Hon.  Wm.  Pitt,  Mr.  J.  Martin,  Mr.  Shove, 

Sir  Watkin  Lewes,  Mr.  Aid.  Townsend,  Mr.  Churchill, 

ReT.  Mr.  Wyvill,  Mr.  Aid.  Creichton,  Mr.  Tooke, 

Mr.  Falconer,  Mr.  Aid.  Wilkes,  Mr.  Home, 

Mr.  Redman,  Rev.  Mr.  Bromley,  Mr.  Frost, 

Mr.  Withers,  Mr.  B.  Hollis,  Mr.  Treranion, 

Mr.  Bodcly,  Mr.  Disney  Fitche,  Mr.  Brocklesby, 

Mr.  Viirdy,  Mr.  Edmunds,  Rev.  Dr.  Rycrofl, 

Mr.  Sheridan,  General  Hale,  Colonel  Byron, 

Mr.  Aid.  Turner,  Sir  Cecil  Wray,  Major  Parry,  . 

Mr.  Trecothick,  Mr.  B.  Hayes,  Mr.  Green, 

Mr.  Vincent,  Sir.  J.  Norcliffe,  Etc.,     etc.,     etc. 

Rrtolvfd,  unanimously,  That  the  motion  of  the  Honorable  William 
Pitt  on  the  7th  instant,  for  the  appointment  of  a  committee  of  the 
House  of  Commons,  to  inquire  into  the  state  of  the  representation  of 
the  people  of  Great  Britain  in  Parliament,  and  to  report  the  same  to 
the  House,  and  also  what  steps  it  might  be  proper  in  their  opinion 
to  take  thereupon,  having  been  defeated  by  a  motion  made  for  the 
order  of  the  day,  it  is  become  indispensably  necessary  that  applica- 
tion should  be  made  to  Parliament,  by  petitions  from  the  collective  body 
of  the  people  in  their  respective  districts,  requesting  a  substantial 
reformation  of  the  Commons  House  of  Parliament. 

,  unanimously,    That  this  meeting,  considering  that  a  gen- 


134  SPEECH    OF    MR.    ERSKINE 

and  the  Duke  of  Richmond  at  the  Thatched 
House  Tavern,  in  St.  James'  Street ;  that  I  find 
him  also  the  correspondent  of  the  former,  and  that 
I  discover  in  their  publications  on  the  structure 
and  conduct  of  the  House  of  Commons,  expressions, 
which,  however  merited,  and  in  my  opinion  com- 
mendable, would  now  be  cocsidered  not  merely  as 
intemperate  and  unguarded,  but  as  highly  criminal.* 

eral  application  by  the  collective  body  to  the  Commons  House  of  Par- 
liament cannot  be  made  before  the  close  of  the  present  session,  is  of 
opinion,  that  the  sense  of  the  people  should  be  taken  at  such  times  as 
may  be  convenient  this  summer,  in  order  to  lay  their  several  petitions 
before  Parliament  early  in  the  next  session,  when  their  proposition  for 
a  Parliamentary  reformation,  without  which  neither  the  liberty  of  the 
nation  can  be  preserved,  nor  the  permanence  of  a  wise  and  virtuous 
administration  can  be  secured,  may  receive  that  ample  and  mature  dis- 
cussion which  so  momentous  a  question  demands. 

Resolved,  unanimously,  That  the  thanks  of  this  meeting  be  given  to 
the  Honorable  William  Pitt  for  moving,  John  Sawbridge,  Esq.,  for  sec- 
onding, and  the  one  hundred  and  forty-one  other  members  who  sup- 
ported, the  motion  for  a  committee  to  inquire  into  the  state  of  Parlia- 
mentary representation,  and  to  suggest  what  in  their  opinion  ought  to 
be  done  thereupon ;  as  well  as  to  the  Duke  of  Richmond,  Lord  John 
Cavendish,  Mr.  Secretary  Fox,  and  every  other  member  of  the  present 
Ministry,  or  of  either  House  of  Parliament,  who  has  in  any  way  pro- 
moted the  necessary  reform  that  was  the  object  of  the  foregoing 
motion. 

WILLIAM  PLOMEK,    Chairman. 

And  they  resolved  to  have  another  meeting  at  the  same  place  on 
Saturday,  June  1. 

*  (COPY.) 

DEAR  SIR. — I  am  extremely  sorry  that  I  was  not  at  home,  when  you 
and  the  other  gentlemen  from  the  Westminster  committee  did  me  the 
honor  to  call. 

May  I  beg  the  favor  of  you  to  express,  that  I  am  truly  happy  to 
find  that  the  motion  of  Tuesday  last  has  the  approbation  of  such 
zealous  friends  to  the  public,  and  to  assure  the  committee  that  my 


ON   THE  TRIAL  OF  JOHN   FROST.  135 

Gentlemen,  the  fashion  of  this  world  speedily 
passcth  away.  We  find  these  glorious  restorers  of 
equal  representation  determined,  as  ministers,  that, 
so  far  from  every  man  being  an  elector,  the  me- 
tropolis of  the  Kingdom  should  have  no  election  at 
all,  but  should  submit  to  the  power  or  to  the  softer 
allurements  of  the  Crown.  Certain  it  is,  that  fora 
short  season,  Mr.  Frost,  being  engaged  profession- 
ally as  agent  for  the  government  candidate,  did 
not,  indeed  he  could  not,  oppose  this  inconsistency 
between  the  doctrine  and  practice  of  his  friends; 
and  in  this  interregnum  of  public  spirit,  he  was,  in 
the  opinion  of  government,  a  perfect  patriot,  a 
faithful  friend  to  the  British  constitution.  As  a 
member  of  the  law  he  was  therefore  trusted  with 
government  business  in  matters  of  revenue,  and 

exertions  shall  never  \)f  wanting  in  support  of  a  measure,  which  I 
agree  with  them  in  thinking  essentially  necessary  to  the  independence 
of  Parliament  and  the  liberty  of  the  people. 

I  hare  the  honor  to  be,  with  great  respect  and  esteem,  sir, 
Your  most  obedient  and  most  humble  servant, 

W.  PITT. 

Lincoln's  Inn,  Friday,  May  \0th, 
JOHX  FROST,  ESQ.,  Percy  Street. 

LINCOLN'S  Iff*.  May  12/A,  1782. 

SIR. — I  have  received  the  faTor  of  your  note,  and  shall  be  proud  to 
receive  the  honor  intended  me  by  the  gentlemen  of  the  Middlesex  com- 
mittee, at  the  time  you  mention. 

I  am,  with  great  regard,  *ir, 

Your  most  humble  servant, 

W.  PITT. 
Jons  FROST,  ESQ.,  Percy  Street. 


136  SPEECH    OF   MR.    ERSKINE 

was,  in  short,  what  all  the  friends  of  government 
of  course  are,  the  hest  and  most  approved.  To 
save  words,  he  was,  like  all  the  rest  of  them,  just 
what  he  should  be.  But  the  election  being  over, 
and,  with  it,  professional  agency,  and  Mr.  Frost,  as 
he  lawfully  might,  continuing  to  hold  his  former 
opinions  which  were  still  avuwed  and  gloried  in, 
though  not  acted  on,  by  his  ancient  friends,  he 
unfortunately  did  not  change  them  the  other  day, 
when  they  were  thrown  off  by  others.  On  the 
contrary,  he  rather  seems  to  have  taken  fire  with 
the  prospect  of  reducing  them  to  practice;  and 
being,  as  I  have  shown  you,  bred  in  a  school  which 
took  the  lead  in  boldness  of  remonstrance  of  all 
other  reformers  before  or  since,  he  fell,  in  the  heat 
and  levity  of  wine,  into  expressions  which  have  no 
correspondence  with  his  sober  judgment;  which 
would  have  been  passed  over  or  laughed  at  in  you 
or  me,  but  which  coming  from  him  were  never  to 
be  forgiven  by  government.  This  is  the  genuine 
history  of  his  offence ;  for  this  he  is  to  be  the  sub- 
ject of  prosecution ;  not  the  prosecution  of  my 
learned  friend;  not  the  prosecution  of  the  Attorney- 
General;  not  the  prosecution  of  his  Majesty;  but 
the  prosecution  of  Mr.  Yatman,  who  wishes  to 
show  you  his  great  loyalty  to  the  state  and  consti- 
tution, which  were  in  danger  of  falling,  had  it  not 
been  for  the  drugs  of  this  worthy  apothecary. 
With  regard  to  the  new  government  of  France, 


ON   THE  TKIAL   OF  JOHN   FROST.  137 

since  the  subject  has  been  introduced,  all  I  can  say 
of  it  is  this:  that  the  good  or  evil  of  it  belongs  to 
themselves ;  that  they  had  a  right,  like  every  other 
people  upon  earth,  to  change  their  government ; 
that  the  system  destroyed  was  a  system  disgraceful 
to  free  and  rational  beings,  and  if  they  have  neither 
substituted,  nor  shall  hereafter  substitute,  a  better 
in  its  stead,  they  must  eat  the  bitter  fruits  of  their 
own  errors  and  crimes.  As  to  the  horrors  which 
now  disfigure  and  desolate  that  fine  country,  all 
good  men  must  undoubtedly  agree  in  condemning 
and  deploring  them;  but  they  may  differ  never- 
theless in  deciphering  their  causes.  Men  to  the 
full  as  wise  as  those  who  pretend  to  be  wiser  than 
Providence,  and  stronger  than  the  order  of  things, 
may  perhaps  reflect  that  a  great  fabric  of  unwar- 
rantable power  and  corruption  could  not  fall  to  the 
ground  without  a  mighty  convulsion ;  that  the  agi- 
tation must  ever  be  in  proportion  to  the  surface 
agitated ;  that  the  passions  and  errors  inseparable 
from  humanity  must  heighten  and  swell  the  confu- 
sion, and  that  perhaps,  the  crimes  and  ambition  of 
other  nations,  under  the  mask  of  self-defence  and 
humanity,  may  have  contributed  not  a  little  to 
aggravate  them  ;  may  have  tended  to  embitter  the 
spirits  and  to  multiply  the  evils  which  they  con- 
demn ;  to  increase  the  misrule  and  anarchy  which 
they  seek  to  disembroil,  and  in  the  end  to  endan- 
ger their  own  governments,  which  by  carnage  and 


138  SPEECH   OF   ME.    ERSKINE 

bloodshed,  instead  of  by  peace,  improvement,  and 
wise  administration,  they  profess  to  protect  from 
the  contagion  of  revolution. 

As  to  the  part  which  bodies  of  men  in  England 
have  taken,  though  it  might  in  some  instances  be 
imprudent  and  irregular,  yet  I  see  nothing  to  con- 
demn or  to  support  the  declamation  which  we  daily 
hear  upon  the  subject.  The  congratulations  of 
Englishmen  were  directed  to  the  fall  of  corrupt 
and  despotic  power  in  France,  and  were  animated 
by  the  wish  of  a  milder  and  freer  government,  hap- 
pier for  that  country  and  safer  for  this.  And  they 
were  besides  addressed  to  France  when  she  was  at 
peace  with  England,  and  when  no  law  was  there- 
fore broken  by  the  expression  of  opinion  or  satis- 
faction. Thev  were  not  congratulations  on  the 

«/ 

murders  which  have  since  been  committed,  nor  on 
the  desolations  which  have  since  overspread  so 
large  a  portion  of  the  earth,  neither  were  they 
traitorous  to  the  government  of  this  country.  This 
we  may  safely  take  in  trust,  since  not  one  of  them 
even  in  the  rage  of  prosecution,  has  been  brought 
before  a  criminal  court.  For  myself,  I  never  joined 
in  any  of  these  addresses,  but  what  I  have  delivered 
concerning  them  is  all  I  have  been  able  to  dis- 
cover; and  government  itself,  as  far  as  evidence 
extends,  has  not  been  more  successful.  I  would 
therefore  recommend  it  to  his  Majesty's  servants  to 
attend  to  the  reflections  of  an  eloquent  writer,  at 


ON   THE  TRIAL   OF   JOHN   FROST.  139 

present  high  in  their  confidence  and  esteem,  who 
has  admirably  exposed  the  danger  and  injustice  of 
general  accusations.  "  This  way  of  proscribing  the 
citizens  by  denominations  and  general  dt^scriptions, 
dignified  by  the  name  of  reason  of  state,  and  secu- 
rity for  constitutions  and  commonwealths,  is  noth- 
ing better  at  bottom  than  the  miserable  invention 
of  an  ungenerous  ambition,  which  would  fain  hold 
the  sacred  trust  of  power,  without  any  of  the  vir- 
tues or  energies  that  give  a  title  to  it;  a  receipt  of 
policy  made  up  of  a  detestable  compound  of  malice, 
cowardice,  and  sloth.  They  would  govern  men 
against  their  will ;  but  in  that,  government  would 
be  discharged  from  the  exercise  of  vigilance,  provi- 
dence, and  fortitude ;  and  therefore  that  they  may 
sleep  on  their  watch,  consent  to  take  some  one 
division  of  the  society  into  partnership  of  the 
tyranny  over  the  rest.  But  let  government,  in 
whatever  form  it  may  be,  comprehend  the  whole 
in  its  justice,  and  restrain  the  suspicious  by  its 
vigilance ;  let  it  keep  watch  and  ward ;  let  it  dis- 
cover by  its  sagacity,  and  punish  by  its  firmness, 
all  delinquency  against  its  power,  whenever  it  ex- 
ists in  the  overt  acts,  and  then  it  will  be  as  safe  as 
God  and  nature  intended  it  should  be.  Crimes  are 
the  acts  of  individuals,  and  not  of  denominations ; 
and  therefore  arbitrarily  to  class  men  under  gen- 
eral descriptions,  in  order  to  proscribe  and  punish 
them  in  the  lump  for  a  presumed  delinquency,  of 


140  SPEECH   OF   ME.    ERSKINE 

which  perhaps  but  a  part,  perhaps  none  at  all,  are 
guilty,  is  indeed  a  compendious  method,  and  saves 
a  world  of  trouble  about  proof ;  but  such  a  method, 
instead  of  being  law,  is  an  act  of  unnatural  rebel- 
lion against  the  legal  dominion  of  reason  and  jus- 
tice ;  and  a  vice,  in  any  constitution  that  entertains 
it,  which  at  one  time  or  other  will  certainly  bring 
on  its  ruin."* 

Gentlemen,  let  us  now  address  ourselves  to  the 
cause,  disembarrassed  by  foreign  considerations ; 
let  us  examine  what  the  charge  upon  the  record  is, 
and  see  how  it  is  supported  by  the  proofs ;  for, 
unless  the  whole  indictment,  or  some  one  count  of 
it,  be  in  form  and  substance  supported  by  the  evi- 
dence, the  defendant  must  be  acquitted,  however 
in  other  respects  you  may  be  dissatisfied  with  his 
imprudence  and  indiscretion.  The  indictment 
charges,  "  That  the  defendant,  being  a  person  of 
an  impious,  depraved,  seditious  disposition,  and 
maliciously  intending  to  disturb  the  peace  of  the 
kingdom  ;  to  bring  our  most  serene  Sovereign  into 
hatred  and  contempt  with  all  the  subjects  of  the 
realm,  and  to  excite  them  to  discontent  against  the 
government,  he,  the  said  defendant,  his  aforesaid 
wicked  contrivances  and  intentions  to  complete, 
perfect,  and  render  effectual,  on  the  6th  day  of 
November,"  spoke  the  words  imputed  to  him  by 
the  Crown.  This  is  the  indictment,  and  it  is  drawn 

*  Edmund  Burke. 


ON   THE  TRIAL  OF  JOHN   FROST.  1-41 

with  a  precision  which  murks  the  true  principle  of 
English  criminal  law.  It  does  not  merely  charge 
the  speaking  of  the  words,  leaving  the  wicked  in- 
tention to  he  supplied  and  collected  by  necessary 
and  unavoidable  inference,  because  such  inference 
may  or  may  not  follow  from  the  words  themselves, 
according  to  circumstances,  which  the  evidence 
alone  can  disclose ;  it  charges  therefore  the  wicked 
intention  as  a  fact,  and  as  constituting  the  very 
essence  of  the  crime,  stating  as  it  must  state,  to 
apprise  the  defendant  of  the  crime  alleged  against 
him,  the  overt  act,  by  which  such  malicious  pur- 
pose was  displayed,  and  by  which  he  sought  to 
render  it  effectual.  No  man  can  be  criminal  with- 
out a  criminal  intention,  actus  nonfacit  reuin  nisi 
metis  sit  rea.  God  alone  can  look  into  the  heart, 
and  man,  could  he  look  into  it,  has  no  jurisdiction 
over  it,  until  society  is  disturbed  by  its  actions ; 
but  the  criminal  mind  being  the  source  of  all  crim- 
inality, the  law  seeks  only  to  punish  actions  which 
it  can  trace  to  evil  disposition  ;  it  pities  our  errors 
and  mistakes ;  makes  allowances  for  our  passions, 
and  scourges  only  our  crimes. 

Gentlemen,  my  learned  friend,  the  Attorney- 
General,  in  the  conclusion  of  his  address  to  you,  did 
more  than  ratify  these  propositions ;  for,  with  a 
liberality  and  candor  very  honorable  to  himself, 
and  highly  advantageous  to  the  public  which  he 
represents,  he  said  to  you,  that  if  the  expressions 


142  SPEECH    OF   MR.    EESKINE 

charged  upon  the  defendant,  should  turn  out  in 
your  opinion  to  be  unadvised  and  unguarded,  aris- 
ing on  the  sudden,  and  unconnected  with  previous 
bad  intention,  he  should  not  even  insist  upon  the 
strictness  of  the  law,  whatever  it  might  be,  nor  ask 
a  verdict  but  such  as  between  man  and  man,  acting 
upon  moral  and  candid  feelings,  ought  to  be  asked 
and  expected.  These  were  the  suggestions  of  his 
own  just  and  manly  disposition,  and  he  confirmed 
them  by  the  authority  of  Mr.  Justice  Forster, 
whose  works  are  so  deservedly  celebrated;  but 
judging  of  my  unfortunate  client,  not  from  his 
own  charity,  but  from  the  false  information  of 
others,  he  puts  a  construction  upon  an  expression 
of  this  great  author,  which  destroys  much  of  the 
intended  effect  of  his  doctrine;  a  doctrine  which  I 
will  myself  read  again  to  you,  and  by  the  right 
interpretation  of  which  I  desire  the  defendant  may 
stand  or  fall.  In  the  passage  read  to  you,  Forster 
says,  "As  to  mere  words,  they  differ  widely  from 
writings  in  point  of  real  malignity  and  proper 
evidence ;  they  are  often  the  effect  of  mere  heat  of 
blood,  which  in  some  natures,  otherwise  well-dis- 
posed, carrieth  the  man  beyond  the  bounds  of 
prudence;  they  are  always  liable  to  great  miscon- 
struction, from  the  ignorance  or  inattention  of  the 
hearers,  and  too  often  from  a  motive  truly  criminal." 
Forster  afterwards  goes  on  to  contrast  such  loose 
words,  "  not  relative  to  any  act  or  design,"  for  so 


Oy  TUB  TRIAL   OF   JOHN   FROST.  143 

lie  expresses  himself,  with  "words  of  advice  and 
persuasion  in  contemplation  of  some  traitorous 
purpose  actually  on  foot  or  intended,  and  in  prose- 
cution of  it."  Comparing  this  rule  of  judgment 
with  the  evidence  given,  one  would  have  expected 
a  consent  to  the  most  favorable  judgment,  one 
would  have  almost  considered  the  quotation  as  a 
tacit  consent  to  an  acquital ;  but  Mr.  Attorney- 
General,  still  looking  through  the  fnlse  medium  of 
other  men's  prejudices,  lays  hold  of  the  words, 
"otherwise  well-disposed,"  and  engrafts  upon  them 
this  most  extraordinary  requisition.  Show  me,  he 
says,  that  Mr.  Frost  is  otherwise  well-disposed. 
Let  him  bring  himself  within  the  meaning  of 
Forster,  and  then  I  consent  that  he  shall  have  the 
fullest  benefit  of  his  indulgent  principle  of  judg- 
ment. Good  God,  gentlemen,  are  we  in  an  English 
court  of  justice?  Are  we  sitting  in  judgment 
before  the  chief  justice  of  England,  with  the  assist- 
ance of  a  jury  of  Englishmen  ?  and  am  I  in  such  a 
presence  to  be  called  upon  to  prove  the  good 
disposition  of  my  client,  before  I  can  be  entitled  to 
the  protection  of  those  rules  of  evidence  which  ap- 
ply equally  to  the  just  and  to  the  unjust,  and  by 
which  an  evil  disposition  must  be  proved  before  it 
shall  even  be  suspected  ?  I  came  here  to  resist 
and  to  deny  the  existence  of  legitimate  and  credible 
proof  of  disloyalty  and  disaffection ;  and  am  I  to 
be  called  upon  to  prove  that  my  client  has  not 


144  SPEECH   OF   MR.    ERSKINE 

been,  nor  is  disloyal  and  disaffected  ?  Are  we  to 
be  deafened  with  panegyrics  upon  the  English  con- 
stitution, and  yet  to  be  deprived  of  its  first  and 
distinguishing  feature,  that  innocence  is  to  be  pre- 
sumed until  guilt  be  established  ?  Of  what  avail 
is  that  sacred  maxim,  if,  upon  the  bare  assertion 
and  imputation  of  guilt,  a  man  may  be  deprived 
of  a  rule  of  evidence,  the  suggestion  of  wisdom  and 
humanity,  as  if  the  rule  applied  only  to  those  who 
need  no  protection,  and  who  were  never  accused  ? 
If  Mr.  Frost,  by  any  previous  overt  acts,  by  which 
alone  any  disposition,  good  or  evil,  can  be  proved, 
had  shown  a  disposition  leading  to  the  offence  in 
question,  it  was  evidence  for  the  Crown.  Mr. 
Wood,  whose  learning  is  unquestionable,  undoubt- 
edly thought  so,  when,  with  the  view  of  crimination 
he  asked,  where  Mr.  Frost  had  been  before  the 
time  in  question,  for  he  is  much  too  correct  to  have 
put  an  irregular  and.  illegal  question  in  a  criminal 
case ;  I  must  therefore  suppose  his  right  to  ask  it, 
appeared  to  him  quite  clear  and  established,  and  I 
have  no  doubt  that  it  was  so.  Why  then  did  he 
not  go  on  and  follow  it  up,  by  asking  what  he  had 
done  in  France?  what  declarations  he  had  made 
there,  or  what  part  he  proposed  to  act  here,  upon 
his  return?  The  charge  upon  the  record  is, 
that  the  words  were  uttered  with  malice  and  pre- 
meditation ;  and  Mr.  Attorney-General  properly 
disclaims  a  conviction  upon  any  other  footing. 


ON   THE   TRIAL  OF  JOHN   FROST.  145 

Surely  then  it  was  open  to  the  Crown,  upon  every 
principle  of  common  sense,  to  have  proved  the 
previous  malice  by  all  previous  discourses  and  pre- 
vious conduct,  connected  with  accusation  ;  and  yet, 
after  having  wholly  and  absolutely  failed  in  this 
most  important  part  of  the  proof,  we  are  gravely 
told,  that  the  Crown  having  failed  in  the  affirmative 
we  must  set  about  establishing  the  negative,  for 
that  otherwise  we  are  not  within  the  pale  or  pro- 
tection of  the  very  first  and  paramount  principles 
of  the  law  and  government  of  the  country. 

Having  disposed  of  this  stumbling-block  in  the 
way  of  sound  and  indulgent  judgment,  we  may 
now  venture  to  examine  tliis  mighty  offence  as  it  is 
proved  by  the  witnesses  for  the  Crown,  supposing 
the  facts  neither  to  have  been  m instated  from  mis- 
apprehension, nor  wilfully  exaggerated. 

Mr.  Frost,  the  defendant,  a  gentleman,  who 
upon  the  evidence  stands  wholly  unimpeached  of 
any  design  against  the  public  peace,  or  any  indis- 
position to  the  constitution  of  the  kingdom,  apjK?ars 
to  have  dined  at  the  tavern  over  the  Percy  coffee- 
house, not  even  with  a  company  met  upon  any 
political  occasion,  good  or  evil,  but,  as  has  been 
admitted  in  the  opening,  with  a  society  for  the 
encouragement  of  agriculture,  consisting  of  most 
reputable  and  inoffensive  persons,  neither  talking 
nor  thinking  about  Government,  or  its  concerns; 
so  much  for  the  preface  to  this  dangerous  conspir- 
10  B 


146  SPEECH   OF   ME.    ERSKINE 

acy.  The  company  did  not  retire  till  the  bottle 
had  made  many  merry  circles;  and  it  appears  upon 
the  evidence  for  the  Crown,  that  Mr.  Frost,  to  say 
the  least,  had  drank  very  freely  ;  but  was  it  then, 
that,  with  the  evil  intention  imputed  to  him,  he 
went  into  this  coffee-house  to  circulate  his  opinions, 
and  to  give  effect  to  designs  he  had  premeditated  ? 
He  could  not  possibly  go  home  without  passing 
through  it ;  for  it  is  proved  that  there  was  no 
other  passage  into  the  street  from  the  room  where 
he  had  dined ;  but  having  got  there  by  accident, 
did  he  even  then  stop  by  design  and  collect  an 
audience  to  scatter  sedition  ?  So  far  from  it,  that 
Mr.  Yatman,  the  very  witness  against  him,  admits 
that  he  interrupted  him  as  he  passed  in  silence 
toward  the  street,  and  fastened  the  subject  of 
France  upon  him  ;  and  every  word  which  passed, 
for  the  whole  is  charged  upon  the  very  record  as  a 
dialogue  with  this  witness,  in  answer  to  his  entrap- 
ping questions,  introduced  with  the  familiarity  of 
a  very  old  acquaintance,  and  in  a  sort  of  banter, 
too,  that  gave  a  turn  to  the  conversation,  which 
renders  it  ridiculous  as  well  as  wicked,  to  convert 
it  into  a  serious  plan  of  mischief:  "  Well,"  says 
Mr.  Yatman,  "  well,  Mr.  Equality,  so  you  have 
been  in  France — when  did  you  arrive  ?  I  suppose 
you  are  for  equality,  and  no  kings  ?"  "  O  yes/' 
says  Mr.  Frost,  "  certainly  I  am  for  equality;  I  am 
for  no  kings."  Now,  beyond  all  question,  when 


OX   THE   TRIAL   OF  JOHN    FROST.  147 

this  answer  was  made,  whether  in  jest  or  in  earnest, 
whether  when  drunk  or  sober,  it  neither  had,  nor 
could  have  the  remotest  relation  to  England  or  its 
government;  France  hud  just  abolished  its  new 
constitution  of  monarchy,  and  set  up  a  republic ; 
she  was  at  that  moment  divided  and  in  civil  con- 
fusion on  the  subject,  the  question  therefore,  and 
the  answer,  as  they  applied  to  France,  were  sensible 
and  relevant;  but  to  England  or  to  English  affairs 
they  had  not,  except  in  the  ensnaring  sequel,  the 
remotest  application.  Had  Yatinan  therefore 
ended  here,  the  conversation  would  have  ended, 
and  Mr.  Frost  would  have  been  the  next  moment 
in  the  street ;  but  still  the  question  is  forced  upon 
him,  and  he  is  asked,  "What!  no  kings  in  Eng- 
land?" although  his  first  answer  had  no  connection 
with  England;  the  question,  therefore,  was  self- 
evidently  a  snare;  to  which  he  answered,  "No 
kings  in  England,"  which  seemed  to  be  all  that 
was  wanted,  for  in  a  moment  everything  was  con- 
fusion and  uproar;  Mr.  Frost,  who  had  neither 
delivered  nor  meant  to  deliver  any  serious  opinion 
concerning  government,  and  finding  himself  inju- 
riously set  upon,  wished,  as  was  most  natural,  to 
explain  himself,  by  stating  to  those  around  him 
what  I  have  been  just  stating  to  you ;  but  all  in 
vain;  they  were  in  pursuit  of  the  immortal  fame  of 
the  very  business  we  are  engaged  in  at  this  moment, 
and  were  resolved  to  hold  their  advantage;  his 


148  SPEECH    OF   MR.    ERSKINE 

voice  was  immediately  drowned  by  the  clamors  of 
insult  and  brutality,  he  was  baited  on  all  sides  like 
a  bull,  and  left  the  coffee-house  without  the  possi- 
bility of  being  heard  either  in  explanation  or 
defence.  An  indictment  was  immediately  prefer- 
red against  him,  and  from  that  moment  the  public 
ear  has  been  grossly  and  wickedly  abused  upon 
the  subject ;  his  character  shamefully  calumniated, 
and  his  cause  pre-judged  before  the  day  of  trial. 

Gentlemen,  it  is  impossible  for  me  to  form  any 
other  judgment  of  the  impression  which  such  a 
proceeding  altogether  is  likely  to  make  upon  your 
minds,  but  from  that  which  it  makes  upon  my  own. 
In  the  first  place,  is  society  to  be  protected  by  the 
breach  of  those  confidences,  and  in  the  destruction 
of  that  security  and  tranquility,  which  constitutes 
its  very  essence  everywhere,  but  which,  till  of  late, 
most  emphatically  characterized  the  life  of  an  Eng- 
lishman ?  Is  government  to  derive  dignity  and 
safety  by  means  which  render  it  impossible  for  any 
man  who  has  the  least  spark  of  honor  to  step  for- 
ward to  serve  it  ?  Is  the  time  come  when  obedi- 
ence to  the  law  and  correctness  of  conduct  are  not 
a  sufficient  protection  to  the  subject,  but  that  he 
must  measure  his  steps,  select  his  expressions,  and 
adjust  his  very  looks  in  the  most  common  and  pri- 
vate intercourses  of  life  ?  Must  an  English  gentle- 
man in  future  fill  his  wine  by  a  measure,  lest,  in  the 
openness  of  his  soul,  and  whilst  believing  his 


ON   THE  TRIAL  OF  JOHN   FROST.  141) 

neighbors  are  joining  with  him  in  that  happy 
relaxation  and  freedom  of  thought  which  is  the 
prime  blessing  of  life,  he  should  find  his  character 
blasted,  and  his  person  in  a  prison?  Does  any 
man  put  such  restraint  upon  himself  in  the  most 
private  moment  of  his  life,  that  he  would  be  con- 
tented to  have  his  loosest  and  lightest  words 
recorded,  and  set  in  array  against  him  in  a  court 
of  justice?  Thank  God,  the  world  lives  very  dif- 
ferently, or  it  would  not  be  worth  living  in.  There 
are  moments  when  jarring  opinions  may  be  given 
without  inconsistency,  when  truth  herself  may  be 
8jx>rted  with  without  the  breach  of  veracity,  and 
where  well-imagined  nonsense  is  not  only  superior 
to,  but  is  the  very  index  to  wit  and  wisdom.  I 
might  safely  assert,  taking,  too,  for  the  standard  of 
my  assertion,  the  most  honorably  correct  and 
enlightened  societies  in  the  kingdom,  that  if  malig- 
nant spies  were  properly  posted,  scarcely  a  dinner 
would  end  without  a  duel  and  an  indictment. 

When  I  came  down  this  morning,  and  found, 
contrary  to  my  expectation,  that  we  were  to  be 
stuffed  into  this  miserable  hole  in  the  wall,*  to  con- 
sume our  constitutions;  suppose  I  had  muttered 
along  through  the  gloomy  passages,  What,  is  this 
cursed  trial  of  Hastings  going  on  again  ?  Are  we 
to  have  no  respite?  Are  we  to  die  of  the  asthma 

•The  King's  Bench  Mt  in  the  small  Court  of  Common  Pleas,  the 
impeachment  having  shut  up  its  own  court. 


150  SPEECH    OF   ME.    EESKINE 

in  this  damned  corner  ?  I  wish  to  God  the  roof 
would  come  down  and  abate  the  impeachment, 
Lords,  Commons  and  all  together.  Such  a  wish 
proceeding  from  the  mind  would  be  desperate 
wickedness,  and  the  serious  expression  of  it  a  high 
and  criminal  contempt  of  Parliament.  Perhaps 
the  bare  utterance  of  such  words,  even  without 
meaning  would  be  irreverent  and  foolish;  but  still, 
if  such  expressions  had  been  gravely  imputed  to  me 
as  the  result  of  a  malignant  mind,  seeking  the  de- 
struction of  the  Lords  and  Commons  of  England, 
how  would  they  have  been  treated  in  the  House  of 
Commons,  on  a  motion  for  my  expulsion  ?  How  ? 
The  witness  would  have  been  laughed  out  of  the 
House  before  he  had  half  finished  his  evidence,  and 
would  have  been  voted  to  be  too  great  a  blockhead 
to  deserve  a  worse  character.  Many  things  are 
indeed  wrong  and  reprehensible,  that  neither  do 
nor  can  become  the  objects  of  criminal  justice, 
because  the  happiness  and  security  of  social  life, 
which  are  the  very  end  and  object  of  all  law  and 
justice,  forbid  the  communication  of  them;  because 
the  spirit  of  a  gentleman,  which  is  the  most  refined 
morality,  either  shuts  men's  ears  against  what 
should  not  be  heard,  or  closes  their  lips  with  the 
sacred  seal  of  honor. 

This  tacit  but  well  understood  and  delightful 
compact  of  social  life  is  perfectly  consistent  with 
its  safety.  The  security  of  free  governments,  and 


ON   THE  TRIAL  OF  JOHN    FROST.  151 

the  unsuspecting  confidence  of  every  man  who 
lives  under  them,  are  not  only  compatible  but 
inseparable.  It  is  easy  to  distinguish  where  the 
public  duty  calls  for  the  violation  of  the  private 
one ;  criminal  intention  but  not  indecent  levities, 
not  even  grave  opinions  unconnected  with  conduct, 
are  to  be  exposed  to  the  magistrate ;  and  when 
men,  which  happens  but  seldom,  without  the  honor 
or  the  sense  to  make  the  due  distinctions,  force 
complaints  upon  governments,  which  they  can  nei- 
ther approve  of  nor  refuse  to  act  upon,  it  becomes 
the  office  of  juries,  as  it  is  yours  to-day,  to  draw 
the  true  line  in  their  judgments,  measuring  men's 
conduct  by  the  safe  standards  of  human  life  and 
experience. 

Gentlemen,  the  misery  and  disgrace  of  society, 
under  the  lash  of  informers,  running  before  the 
law,  and  hunting  men  through  the  privacies  of 
domestic  life,  is  described  by  a  celebrated  speaker* 
with  such  force  and  beauty  of  eloquence,  that  I 
will  close  my  observations  on  this  part  of  the  sub- 
ject, by  repeating  what  cannot,  I  am  persuaded,  be 
uttered  amongst  Englishmen  without  sinking  deep 
into  their  hearts  :  "  A  mercenary  informer  knows 
no  distinction.  Under  such  a  system  the  obnoxious 
people  are  slaves,  not  only  to  the  government,  but 
they  live  at  the  mercy  of  every  individual ;  they 
are  at  once  the  slaves  of  the  whole  community  and 

*  Edmund  Burke. 


152  SPEECH    OF    MR.    ERSKINE 

of  every  part  of  it ;  and  the  worst  and  most  unmer- 
ciful men  are  those  on  whose  goodness  they  most 
depend. 

"In  this  situation  men  not  only  shrink  from  the 
frowns  of  a  stern  magistrate,  but  are  obliged  to  fly 
from  their  very  species.  The  seeds  of  destruction 
are  sown  in  civil  intercourse,  and  in  social  habi- 
tudes. The  blood  of  wholesome  kindred  is  infected. 
Their  tables  and  beds  are  surrounded  with  snares. 
All  the  means  given  by  Providence  to  make  life 
safe  and  comfortable  are  perverted  into  instruments 
of  terror  and  torment.  This  species  of  universal 
subserviency,  that  makes  the  very  servant  who 
waits  behind  your  chair  the  arbiter  of  your  life  and 
fortune,  has  such  a  tendency  to  degrade  and  abase 
mankind,  and  to  deprive  them  of  that  assured  and 
liberal  state  of  mind  which  alone  can  make  us  what 
we  ought  to  be,  that  I  vow  to  God,  I  would  sooner 
bring  myself  to  put  a  man  to  immediate  death  for 
opinions  I  disliked,  and  so  to  get  rid  of  the  man 
and  his  opinions  at  once,  than  to  fret  him  with  a 
feverish  being,  tainted  with  the  jail  distemper  of  a 
contagious  servitude,  to  keep  him  above  ground,  an 
animated  mass  of  putrefaction,  corrupted  himself, 
and  corrupting  all  about  him." 

If  these  sentiments  apply  so  justly  to  the  repro- 
bation of  persecution  for  opinions,  even  for  opinions 
which  the  laws,  however  absurdly  inhibit ;  for  opin- 
ions though  certainly  and  maturely  entertained, 


ON   THE  TRIAL  OF  JOHN   FROST.  153 

though  publicly  professed,  and  though  followed  up 
by  corresponding  conduct,  how  irresistibly  do 
they  devote  to  contempt  and  execration  all  eaves- 
dropping attacks  upon  loose  conversations,  casual 
or  convivial,  more  especially  when  proceeding  from 
persons  conforming  to  all  the  religious  and  civil 
institutions  of  the  state,  unsupported  by  general 
and  avowed  profession,  and  not  merely  unconnected 
with  conduct,  but  scarcely  attended  with  recollec- 
tion or  consciousness !  Such  a  vexatious  system  of 
inquisition,  the  disturber  of  household  peace,  began 
and  ended  with  the  Star-Chamber.  The  venerable 
law  of  England  never  knew  it.  Her  noble,  dig- 
nified, and  humane  policy  soars  above  the  little 
irregularities  of  our  lives,  and  disdains  to  enter  our 
closets  without  a  warrant  founded  upon  complaint. 
Constructed  by  man,  to  regulate  human  infirmities, 
and  not  by  God  to  guard  the  purity  of  angels,  it 
leaves  to  us  our  thoughts,  our  opinions,  and  our 
conversations,  and  punishes  only  overt  acts  of  con- 
tempt and  disobedience  to  her  authority. 

Gentlemen,  this  is  not  the  specious  phrase  of  an 
advocate  for  his  client ;  it  is  not  even  my  exposi- 
tion of  the  spirit  of  our  constitution  ;  but  it  is  the 
phrase  and  letter  of  the  law  itself.  In  the  most 
critical  conjunctures  of  our  history,  when  govern- 
ment was  legislating  for  its  own  existence  and  con- 
tinuance, it  never  overstepped  this  wise  moderation. 
To  give  stability  to  establishments,  it  occasionally 


154  SPEECH    OF    ME.    ERSKINE 

bridled  opinions  concerning  them  ;  but  its  punish- 
ments, though  sanguinary,  laid  no  snares  for 
thoughtless  life,  and  took  no  man  by  surprise. 

Of  this  the  act  of  Queen  Anne,  which  made  it 
high  treason  to  deny  the  right  of  Parliament  to 
alter  the  succession,  is  a  striking  example.  The 
hereditary  descent  of  the  Crown  had  been  recently 
broken  at  the  revolution  by  a  minority  of  the 
nation,  with  the  aid  of  a  foreign  force,  and  a  new 
inheritance  had  been  created  by  the  authority  of 
the  new  establishment,  which  had  but  just  estab- 
lished itself.  Queen  Anne's  title  and  the  peaceable 
settlement  of  the  kingdom  under  it,  depended 
wholly  upon  the  constitutional  power  of  Parlia- 
ment to  make  this  change.  The  superstitions  of 
the  world,  and  reverence  for  antiquity,  which  de- 
serves a  better  name,  were  against  this  power  and 
the  use  which  had  been  made  of  it.  The  dethroned 
King  of  England  was  living  in  hostile  state  at  our 
very  doors,  supported  by  a  powerful  monarch  at 
the  head  of  a  rival  nation,  and  our  own  kingdom 
itself  full  of  factious  plots  and  conspiracies,  which 
soon  after  showed  themselves  in  open  rebellion. 

If  ever,  therefore,  there  was  a  season  when  a  nar- 
row jealousy  could  have  been  excusable  in  a  gov- 
ernment ;  if  ever  there  was  a  time  when  the  sacrifice 
of  some  private  liberty  to  common  security  would 
have  been  prudent  in  a  people,  it  was  at  such  a 
juncture.  Yet  mark  the  reserve  of  the  Crown  and 


ON   THE  TRIAL  OF  JOHN   FROST.  135 

the  prudence  of  our  ancestors  in  the  wording  of  the 
statute.  Although  the  denial  of  the  right  of  Par- 
liament to  alter  the  succession  was  tantamount  to 
the  denial  of  all  legitimate  authority  in  the  king- 
dom, and  might  he  considered  as  a  sort  of  abjura- 
tion of  the  laws,  yet  the  statute  looked  at  the 
nature  of  man,  and  to  the  private  security  of  indi- 
viduals in  society,  while  it  sought  to  support  the 
public  society  itself.  It  did  not  therefore  dodge 
men  into  taverns  and  coflee-houses,  nor  lurk  for 
them  at  corners,  nor  watch  for  them  in  their  do- 
mestic enjoyments.  The  act  provides,  "That  every 
person  who  should  maliciously,  advisedly  and  di- 
rectly, by  writing  or  printing,  affirm,  that  the  Queen 
was  not  the  rightful  queen  of  these  realms,  or  that 
the  pretender  had  any  right  or  title  to  the  Crown, 
or  that  any  other  person  had  any  right  or  title, 
otherwise  than  according  to  the  acts  passed  since 
the  revolution  for  settling  the  succession,  or  that 
the  legislature  had  not  sufficient  authority  to  make 
laws  for  limiting  the  succession,  should  be  guilty 
of  high  treason,  and  suffer  as  a  traitor;"  and  then 
enacts,  "That  if  any  person  shall  maliciously,  and 
directly,  by  preaching,  teaching,  or  advised  speak- 
ing declare  and  maintain  the  same,  he  shall  incur 
the  penalties  of  a prtemunire" 

"  I  will  make  a  short  observation  or  two,"  says 
Foreter,  "on  the  act.  First,  the  positions  con- 
demned by  them  had  as  direct  a  tendency  to  involve 


156  SPEECH    OF    ME.    EKSKINE 

these  nations  in  the  miseries  of  an  intestine  war,  to 
incite  her  Majesty's  subjects  to  withdraw  their  alle- 
giance from  her,  and  to  deprive  her  of  her  crown 
and  royal  dignity,  as  any  general  doctrine,  any 
declaration  not  relative  to  actions  or  designs,  could 
possibly  have :  and  yet  in  the  case  of  bare  words, 
positions  of  this  dangerous  tendency,  though  main- 
tained maliciously,  advisedly,  and  directly,  and 
even  in  the  solemnities  of  preaching  and  teaching, 
are  not  considered  as  overt  acts  of  treason. 

"Secondly.  In  no  case  can  a  man  be  argued 
into  the  penalties  of  the  act  by  inferences  and  con- 
clusions drawn  from  what  he  hath  affirmed;  the 
criminal  position  must  be  directly  maintained,  to 
bring  him  within  the  compass  of  the  act. 

"  Thirdly.  Nor  will  every  rash,  hasty,  or  un- 
guarded expression,  owing  perhaps  to  natural 
warmth,  or  thrown  out  in  the  heat  of  disputation, 
render  any  person  criminal  within  the  act;  the 
criminal  doctrine  must  be  maintained  maliciously 
and  advisedly." 

He  afterwards  adds,  "  Seditious  writings  are 
permanent  things,  and  if  published,  they  scatter 
the  poison  far  and  wide.  They  are  acts  of  delib- 
eration, capable  of  satisfactory  proof,  and  not 
ordinarily  liable  to  misconstruction;  at  least  they 
are  submitted  to  the  judgment  of  the  court,  naked 
and  undisguised,  as  they  came  out  of  the  author's 
hands.  Words  are  transient  and  fleeting  as  the 


ON   THE  TRIAL  OF  JOHN    FBOST.  lf>7 

wind ;  the  poison  they  scatter  is,  at  the  worst,  con- 
fineil  to  the  narrow  circle  of  a  few  hearers ;  they 
are  frequently  the  effect  of  a  sudden  transjx>rt,  easily 
misunderstood,  and  often  misreported." 

Gentlemen,  these  distinctions,  like  all  the  dictates 
of  sound  policy,  are  as  obvious  to  reason  as  they 
are  salutary  in  practice.  What  a  man  writes  that 
is  criminal  rn-l  pernicions,  and  disseminates  when 
written,  is  conclusive  of  his  purj>ose  ;  he  manifestly 
must  have  deliberated  on  what  he  wrote,  and  the 
distribution  is  also  an  act  of  deliberation  ;  intention 
iii  such  cases  is  not  therefore  matter  of  legal  proof 
but  of  reasonable  inference,  unless  the  accused,  by 
proof  on  his  side,  can  rebut  what  reason  must 
otherwise  infer:  since  he  who  writes  to  others,  un- 
doubtedly seeks  to  bring  over  other  minds  to 
assimilate  with  his  own.  So  he  who  advisedly 
speaks  to  others  upon  momentous  subjects,  may  be 
presumed  to  have  the  same  intention  ;  but  yet  so 
frail  is  memory,  so  imperfect  are  our  nature's,  so 
dangerous  would  it  be  to  place  words,  which,  to 
use  the  language  of  Forster,  are  transient  and  fleet- 
ing, upon  a  footing  with  deliberate  conduct,  that 
the  criminating  letter  of  the  law  itself  interposes 
the  check  and  excludes  the  danger  of  a  rash  judg- 
ment by  curiously  selecting  from  the  whole  circle 
of  language  an  expression  which  cannot  be  mis- 
taken ;  for  nothing  said  upon  the  sudden  without 
the  evidence  of  a  context,  and  sequel  in  thought  or 


158  SPEECH   OF    ME.    EESKINE 

conduct,  can  in  common  sense  deserve  the  title  of 
advised  speaking.  Try  the  matter  before  you 
upon  the  principle  of  the  statute  of  Queen  Anne, 
and  examine  it  with  the  caution  of  Forster. 

Suppose  then,  that,  instead  of  the  words  imputed 
by  this  record,  the  defendant  coming  half  drunk 
through  this  coffee-house,  had,  in  his  conversation 
with  Yatman,  denied  the  right  of  Parliament  to 
alter  the  succession  :  could  he  have  been  adjudged 
to  suffer  death  for  high  treason  under  the  statute 
of  Queen  Anne?  Reason  and  humanity  equally 
revolt  at  the  position,  and  yet  the  decision  asked 
from  you  is  precisely  that  decision ;  for  if  you 
could  not  have  found  advised  speaking  to  bring  it 
within  that  statute  of  treason,  so  neither  can  you 
find  it  as  the  necessary  evidence  of  the  intention 
charged  upon  the  present  indictment,  which  inten- 
tion constitutes  the  misdemeanor. 

If  anything  were  wanting  to  confirm  these  prin- 
ciples of  the  law  and  the  commentaries  of  its  ablest 
judges,  as  applicable  to  words,  they  are  in  another 
way  emphatically  furnished  by  the  instance  before 
us  ;  for  in  the  zeal  of  these  coffee-house  politicians 
to  preserve  the  defendant's  expressions,  they  were 
instantly  to  be  put  down  in  writing,  and  signed  by 
the  persons  present ;  yet  the  paper  read  by  Colonel 
Bullock,  and  written,  as  he  tells  you,  at  the  very 
moment  with  that  intention,  contains  hardly  a 
single  word,  from  the  beginning  to  the  end  of  it, 


ON   THE   TRIAL  OP  JOHN   FROST.  159 

either  in  meaning  or  expression,  the  same  as  has 
been  related  by  the  witnesses ;  it  sinks  in  the  first 
place  the  questions  put  to  the  defendant,  and  the 
whole  dialogue  which  is  the  best  clue  to  the  busi- 
ness, and  records  "  that  Mr.  Frost  came  into  the 
coffee-house,  and  declared,"  an  expression  which  he 
never  used,  and  which  wears  the  color  of  delibera- 
tion, "  that  he  wished  to  see  equality  prevail  in  this 
country."  Another  expression,  which  it  is  now 
agreed  on  all  hands  he  never  uttered,  and  which 
conveys  a  very  different  idea  from  saying  in  answer 
to  an  impertinent  or  a  taunting  question,  "  O  yes, 
I  am  for  equality."  I  impute  nothing  at  all  to 
Colonel  Bullock,  who  did  not  appear  to  me  to  give 
his  evidence  unfairly  ;  he  read  his  paper  as  he 
wrote  ;  but  this  is  the  very  strength  of  my  observa- 
tion ;  for  suppose  the  case  had  not  come  for  months 
to  trial,  the  other  witnesses,  and  honestly,  too, 
might  have  let  their  memories  lean  on  the  written 
evidence,  and  thus  you  would  have  been  trying, 
and  perhaps  condemning,  the  defendant  for  speak- 
ing words,  stript  too  of  their  explanatory  concomi- 
tants, which  it  stands  confessed  at  this  moment 
were  never  spoken  at  all. 

Gentlemen,  the  disposition  which  ha?  of  late  pre- 
vailed to  depart  from  the  wise  moderation  of  our 
laws  and  constitution,  under  the  pretext,  or  from 
the  zeal  of  preserving  them,  and  which  has  been 
the  parent  of  so  many  prosecutions,  is  an  awful 


160  SPEECH    OF   MR.    EESKINE 

monument  of  human  weakness.  These  associators 
to  prosecute,  who  keep  watch  of  late  upon  our 
words  and  upon  our  looks,  are  associated,  it  seems, 
to  preserve  our  excellent  constitution  from  the  con- 
tagion of  France,  where  an  arbitrary  and  tyran- 
nous democracy,  under  the  color  of  popular  free- 
dom, destroys  all  the  securities  and  blessings  of  life  ; 
but  how  does  it  destroy  them  ?  How,  but  by  the 
very  means  that  these  new  partners  of  executive 
power  would  themselves  employ,  if  we  would  let 
them,  by  inflicting,  from  a  mistaken  and  barbar- 
ous state  of  necessity,  the  severest  punishments  for 
offences  never  defined  by  the  law;  by  inflicting 
them  upon  suspicion  instead  of  evidence,  and  in  the 
blind,  furious,  and  indiscriminate  zeal  of  persecu- 
tion, instead  of  by  the  administration  of  a  sober 
and  impartial  jurisprudence.  Subtracting  the  hor- 
rors of  invading  armies  which  France  cannot  help, 
what  other  mischief  has  she  inflicted  upon  herself? 
From  what  has  she  suffered  but  from  this  undisci- 
plined and  cruel  spirit  of  accusation  and  rash  judg- 
ment ?  A  spirit  that  will  look  at  nothing  dispas- 
sionately, and  which,  though  proceeding  from  a 
zeal  and  enthusiasm  for  the  most  part  honest  and 
sincere,  is  nevertheless  as  pernicious  as  the  wicked 
fury  of  demons,  when  it  is  loosened  from  the  sober 
dominion  of  slow  and  deliberate  justice.  What  is 
it  that  has  lately  united  all  hearts  and  voices  in 
lamentation?  What  but  those  judicial  executions, 


ON   THE   TRIAL  OF  JOHN    FROST.  161 

which  we  have  a  right  to  style  murders,  when  we 
see  the  axe  falling,  and  the  prison  closing  upon 
the  genuine  expressions  of  the  inoffensive  heart; 
sometimes  for  private  letters  to  friends,  uncon- 
nected with  conduct  or  intention ;  sometimes  for 
momentary  exclamations  in  favor  of  royalty,  or 
some  other  denomination  of  government  different 
from  that  which  is  established. 

These  are  the  miseries  of  France,  the  unhappy 
attendants  upon  revolution ;  and  united  as  we  all 
are  in  deploring  them,  upon  what  principle  of  com- 
mon sense  .shall  we  vex  and  terrify  the  subjects  of 
our  own  country,  in  the  very  bosom  of  j>eace,  and 
disgust  them  with  the  government,  which  we  wish 
them  to  cherish,  by  unusual,  irritating,  and  degrad- 
ing prosecutions? 

Indeed,  I  am  very  sorry  to  say  that  we  hear  of 
late  too  much  of  the  excellence  of  the  British  govern- 
ment, and  feel  but  too  little  of  its  benefits.  They, 
too,  who  pronounce  its  panegyrics,  are  those  who 
alone  prevent  the  entire  public  from  acceding  to 
them ;  the  eulogium  comes  from  a  suspected  quar- 
ter, when  it  is  pronounced  by  persons  enjoying 
every  honor  from  the  Crown,  and  treating  the 
people  upon  all  occasions  with  suspicion  and  con- 
tempt. The  three  estates  of  the  kingdom  are 
co-ordinate,  all  alike  representing  the  dignity,  and 
jointly  executing  the  authority  of  the  nation  ;  yet 
all  our  loyalty  seems  to  be  wasted  upon  one  of 
11  B 


162  SPEECH    OF   ME.    ERSKINE 

them.  How  happens  it  else,  that  we  are  so  exqui- 
sitely sensible,  so  tremblingly  alive  to  every  attack 
upon  the  Crown,  or  the  nobles  that  surround  it, 
yet  so  completely  careless  of  what  regards  the  one 
respected  and  awful  Commons  of  Great  Britain? 
If  Mr.  Frost  had  gone  into  every  coffee-house, 
from  Charing  Cross  to  the  Exchange,  lamenting  the 
dangers  of  popular  government,  reprobating  the 
peevishness  of  opposition  in  Parliament,  and  wish- 
ing in  the  most  advised  terms,  that  we  could  look 
up  to  the  Throne  and  its  excellent  ministers  alone, 
for  quiet  and  comfortable  government,  do  you 
think  that  we  should  have  had  an  indictment  ?  I 
ask  pardon  for  the  supposition ;  I  can  discover  that 
you  are  laughing  at  me  for  its  absurdity.  Indeed, 
I  might  ask  you  whether  it  is  not  the  notorious 
language  of  the  highest  men,  in  and  out  of  Parlia- 
ment, to  justify  the  alienation  of  the  popular  part 
of  the  government  from  the  spirit  and  principle  of 
its  trust  and  office,  and  to  prognosticate  the  very 
ruin  and  downfall  of  England,  from  a  free  and 
uncorrupted  representation  of  the  great  body  of 
the  people?  I  solemnly  declare  to  you,  that  I 
think  the  whole  of  this  system  leads  inevitably  to 
the  dangers  we  seek  to  avert;  it  divides  the  higher 
and  the  lower  classes  of  the  nation  into  adverse 
parties,  instead  of  uniting  and  compounding  them 
into  one  harmonious  whole;  it  embitters  people 
against  authority,  which,  when  they  are  made  to 


ON   THE  TRIAL   OF   JOHN    FROST.  103 

feel  anil  know  is  but  their  own  security,  they  must. 

*  *  v 

from  the  very  nature  of  man,  unite  to  support  and 
cherish.  I  do  not  believe  that  there  is  anv  set  of 

•/ 

men  to  be  named  in  England,  I  might  say,  that  I 
do  not  know  an  individual,  who  seriously  wishes  to 
touch  the  Crown,  or  any  branch  of  our  excellent 
constitution;  and  when  we  hear  peevish  and  disre- 
spectful expressions  concerning  any  of  its  functions, 
dejxmd  upon  it,  it  proceeds  from  some  obvious 
variance  between  its  theory  and  its  practice.  These 
variances  are  the  fatal  springs  of  disorder  and  dis- 
gust; they  lost  America,  and  in  that  unfortunate 
separation  laid  the  foundation  of  all  that  we  have 
to  fear;  yet,  instead  of  treading  back  our  steps,  we 
seek  recovery  in  the  system  which  brought  us  into 
peril.  Let  government  in  England  always  take 
care  to  make  its  administration  correspond  with 
the  true  spirit  of  our  genuine  constitution,  and 
nothing  will  ever  endanger  it.  Let  it  seek  to 
maintain. its  corruptions  by  severity  and  coercion, 
and  neither  laws  nor  arms  will  support  it.  These 
are  my  sentiments,  and  I  advise  you,  however  un- 
popular they  may  be  at  this  moment,  to  consider 
them  before  you  repel  them. 

If  the  defendant,  amongst  others,  has  judged  too 
lightly  of  the  advantages  of  our  government,  re- 
form his  errors  by  a  beneficial  experience  of  them ; 
above  all,  let  him  feel  its  excellence  to-dav  in  its 

w 

beneficence;  let  him  compare  in  his  trial  the  con- 


164  SPEECH   OF    ME.    EKSKINE 

dition  of  an  English  subject  with  that  of  a  citizen 
of  France,  which  he  is  supposed  in  theory  to  prefer. 
These  are  the  true  criterions  by  which,  in  the  long 
run,  individuals  and  nations  become  affectionate  to 
governments,  or  revolt  against  them ;  for  men  are 
neither  to  be  talked  nor  written  into  the  belief  of 
happiness  and  security  when  they  do  not  practi- 
cally feel  them,  nor  talked  or  written  out  of  them 
when  they  are  in  the  full  enjoyment  of  their  bless- 
ings. But  if  you  condemn  the  defendant  upon  this 
sort  of  evidence,  depend  upon  it  he  must  have  his 
adherents,  and,  as  far  as  that  goes,  I  must  be  one 
of  them. 

Gentlemen,  I  will  detain  you  no  longer,  being 
satisfied  to  leave  you,  as  conscientious  men,  to  judge 
the  defendant  as  you  yourselves  would  be  judged ; 
and  if  there  be  any  amongst  you  who  can  say  to 
the  rest  that  he  has  no  weak  or  inconsiderate  mo- 
ments; that  all  his  words  and  actions,  even  in  the 
most  thoughtless  passages  of  his  life,  are  fit  for  the 
inspection  of  God  and  man,  he  will  be  the  fittest 
person  to  take  the  lead  in  a  judgment  of  guilty, 
and  the  properest  foreman  to  deliver  it  with  good 
faith  and  firmness  to  the  court. 

I  know  the  privilege  that  belongs  to  the  Attor- 
ney-General to  reply  to  all  that  has  been  said ;  but 
perhaps,  as  I  have  called  no  witnesses,  he  may 
think  it  a  privilege  to  be  waived.  It  is,  however, 
pleasant  to  recollect,  that  if  it  should  be  exercised, 


OX  THE  TRIAL  OF  JOHN   FROST.  165 

even  with  his  superior  talents,  his  honor  and  candor 
will  guard  it  from  abase. 


REPLY  OF  THE  ATTORNEY-GENERAL. 


GENTLEMEN  OF  THE  JURY  :  The  experience  of 
some  years  has  taught  me  that  in  the  useful  admin- 
istration of  justice,  as  it  is  administered  by  the 
juries  in  this  country,  little  more  is  necessary  than 
to  lay  before  them  correctly  the  facts  upon  which 
they  are  to  form  their  judgment,  with  such  obser- 
vations as  naturally  arise  out  of  those  facts. 

Gentlemen,  feeling  that  very  strongly  at  present, 
I  am  certainly  bound  in  some  measure  to  account 
to  you  why  I  feel  it  my  duty  in  this  stage  of  this 
proceeding  to  avail  myself  of  that  liberty  which 
my  learned  friend  has  stated  to  belong  to  me  in 
addressing  you  again. 

Gentlemen,  my  learned  friend  has  thought 
proper  to  state  this  prosecution  as  the  prosecution 
of  informers,  of  men  whom  he  cannot  call  merce- 


166          KEPLY   OF   THE   ATTORNEY-GENERAL 

nary  informers,  but  certainly  whom  he  has  been 
anxious  to  represent  as  officious  informers ;  as  a 
prosecution  which  it  was  my  duty,  independently 
of  any  considerations  that  I  might  feel  myself  upon 
the  subject,  to  bring  before  you,  that  it  was  what 
I  could  not  approve  of,  but  what  I  was  bound  to 
persevere  in  till  I  received  your  verdict. 

Gentlemen,  with  respect  to  bringing  the  cause 
before  the  court,  my  learned  friend  has  not  confined 
his  observations  to  that  point.  He  has  stated  also, 
and  every  thing  that  falls  from  him,  and  more 
especially  in  a  case  that  concerns  the  Crown  and  an 
individual,  deserves  and  must  have  an  answer  from 
me.  He  has  given  you  a  comment  upon  words, 
upon  which  I  likewise  offered  you  some  humble 
observations;  I  mean  the  words,  "otherwise  well- 
disposed."  I  remarked  that  where  words  in  their 
natural  meaning  did  import  a  seditious  mind,  it 
would  be  competent  to  a  defendant  to  show  upon  a 
general  principle  that,  whatever  might  be  the 
words  uttered,  the  circumstances  attending  the 
expression  of  them  might  be  stated  to  the  jury, 
in  order  to  give  a  different  sense  to  them  from 
their  primary  import. 

Gentlemen,  I  hold  it  to  be  my  duty,  standing 
here  responsible  to  the  public  for  the  acts  that  I 
do — deeply  impressed  with  a  consciousness  that  I 
am  so  responsible,  to  state  to  you  that  I  must  be 
extremely  guilty  of  a  breach  of  my  duty  if  I 


ON   THE  TRIAL  OF  JOHN   FROST.  1C>7 

should  now  call  upon  you  for  a  verdict,  or  if  I 
should  now  take  your  opinion ;  because  there  is 
not  a  single  tittle  of  evidence  before  you  which 
was  not  before  me  when  the  indictment  was  laid. 
I  protect  against  that  doctrine  that  the  Attorney- 
General  of  England  is  bound  to  prosecute  because 
some  other  set  of  men  choose  to  recommend  it  to 
him  to  prosecute,  he  disapproving  of  that  prosecu- 
tion. I  know  he  has  it  in  his  j»ower  to  choose 
whether  he  will  or  not,  and  he  will  act  according 
to  his  sense  of  duty.  Do  not  understand  me  to 
be  using  a  language  so  impertinent  as  to  say  that 
the  opinions  of  sober-minded  persons  in  any  station 
in  life  as  to  the  necessity  that  calls  for  a  prosecu- 
tion ought  not  deeply  to  affect  his  judgment.  But 
I  say  it  is  his  duty  to  regulate  his  judgment  by  a 
conscientious  pursuance  of  that  which  Is  recom- 
mended to  him  to  do.  And  if  any  thing  is 
recommended  to  him  which  is  thought  by  other 
persons  to  be  for  the  good  of  the  country,  but 
which  he  thinks  is  not  for  the  good  of  the  country, 
no  man  ought  to  be  in  the  office  who  would  hesi- 
tate to  say,  "My  conscience  must  direct  me,  your 
judgment  shall  not  direct  me."  And  I  know  I 
can  do  this — I  can  retire  into  a  situation  in  which 
I  shall  enjoy  what,  under  the  blessings  of  that  con- 
stitution thus  reviled,  is  perhaps  the  best  proof  of 
its  being  a  valuable  constitution — I  mean  the  fair 
fruits  of  an  humble  industry,  anxiously  and  coil- 


168          REPLY    OF    THE    ATTORNEY-GEJSTEEAL 

scientiously  exercised  in  the  fair  and  honorable 
pursuits  of  life.  I  state,  therefore,  to  my  learned 
friend  that  I  cannot  accept  that  compliment  which 
he  paid  me  when  he  supposed  it  was  not  my  act 
to  bring  this  prosecution  before  you,  because  it 
was  not  what  I  myself  could  approve.  Certainly 
this  prosecution  was  not  instituted  by  me,  but 
it  was  instituted  by  a  person  whose  conduct  in  the 
humane  exercise  of  his  duty  is  well  known ;  and  I 
speak  in  the  presence  of  many  who  have  been  long 
and  often  witnesses  to  it;  and  when  it  devolved 
upon  me  to  examine  the  merits  of  this  prosecution 
it  was  my  bounden  duty  to  examine,  and  it  was 
my  bounden  duty  to  see  if  this  was  a  breach  of 
the  sweet  confidences  of  private  life.  If  this  is  a 
story  brought  from  behind  this  gentleman's  chair 
by  his  servants,  I  can  hardly  figure  to  myself  the 
case  in  which  the  public  necessity  and  expediency 
of  a  prosecution  should  be  so  strong  as  to  break 
in  upon  the  relations  of  private  life.  But,  good 
God!  is  this  prosecution  to  be  so  represented — 
when  a  man  goes  into  a  coffee-house,  who  is  from 
his  profession  certainly  not  ignorant  of  the  respect 
which  the  laws  of  his  country  require  from  him  as 
much  as  from  any  other  man ;  and  when  he,  in 
that  public  coffee-house  (provided  it  was  an  advised 
speaking)  uses  a  language,  which  I  admit  it  is  clear 
upon  the  evidence  given  you  to-day,  provoked  the 
indignation,  if  you  please  so  to  call  it,  of  all  who 


ON   THE  TRIAL  OF  JOHN   FROST.  169 

heard  it — when  persons,  one,  two,  three,  or  more, 
come  to  ask  him  what  he  meant  by  it,  when  he 
gives  them  the  explanation,  and  when  he  makes 
the  offensive  words  still  more  offensive  by  the 
explanation  that  he  repeatedly  gives — will  any 
man  tell  me,  that  if  he  goes  into  a  public  coffee- 
house, whether  he  comes  into  it  from  up-stairs,  or 
whether  he  goes  into  it  from  the  street,  that  he  is 
entitled  to  the  protection  that  belongs  to  the  con- 
fidences of  private  life,  or  that  it  is  a  breach  of 
the  duties  that  result  out  of  the  confidences  of 
private  life  to  punish  him  ? 

Gentlemen,  I  call  upon  you  seriously  to  consider 
the  case,  to  act  with  candor,  to  act  with  indulgence 
to  him  if  you  please,  but  at  the  same  time  to  act 
with  firmness  as  between  him  and  the  country. 
My  learned  friend  has  tried  me  in  some  measure 
to-day ;  now  I  avow  it  again — when  respectable 
persons  will  state  to  me  that  such  circumstances 
did  pass,  I  will  not  take  upon  myself  to  say,  that 
it  is  consistent  with  my  duty  to  the  King,  or  that 
it  is  consistent  with  my  duty  to  the  country,  for 
whose  benefit  it  is  that  he  is  King,  that  I  should 
hear  that  such  things  have  passed  unnoticed.  And 
when  it  is  stated  by  such  men  as  these  are,  unim- 
peached,  feeling  something,  though  their  political 
theories  are  not  the  same  as  those  of  this  defendant, 
surely  they  may  be  allowed  to  feel  and  to  eipfOHB 
at  least  with  zeal  their  indignation,  if  not  to  amort 


170          REPLY   OF   THE   ATTORNEY-GENERAL 

with  industry  their  right  to  what  they  enjoyed 
through  the  blessings  of  Providence,  and  the  con- 
stitution under  which  they  lived.  It  was  a  case 
which  excited  the  honest  zeal  and  the  fair  and 
reasonable  indignation  of  a  great  number  of  gen- 
tlemen :  all  respectable  men,  and  competent  to  sit 
in  that  jury-box,  as  between  this  or  any  other 
individual  and  the  justice  of  the  country.  But, 
gentlemen,  according  to  my  learned  friend,  I  was 
to  do  one  of  these  things :  I  was  to  say  to  Mr. 
Frost,  which  I  certainly  would  have  been  glad  to 
have  said  to  him,  or  any  man  who  stands  in  the 
situation  of  a  defendant,  if  I  could  do  it  with  pro- 
priety, What  is  this  story,  Mr.  Frost?  Can  I  ask 
a  defendant,  whom  I  am  to  prosecute  upon  the 
prima  facie  evidence  laid  before  me,  what  he  is  to 
say  for  himself  in  that  stage  of  the  business?  It 
was  open  to  Mr.  Frost  in  every  stage  of  the  busi- 
ness to  have  explained  his  conduct.  He  does  not 
come  upon  this  record  to  say  as  many  persons  have 
said,  "  I  admit  I  spoke  the  words,  I  will  not  give 
you  the  trouble  to  prove  the  words ;  I  spoke  them 
in  a  degree  of  heat.  I  am  (what  he  has  never  yet 
said,  for  he  only  seemed  to  retract)  I  am  sorry  for 
the  words  I  have  used." 

Gentlemen,  my  learned  friend  says  I  should  have 
said  nothing  to  you  upon  the  subject  of  France, 
and  he  particularly  alludes  to  a  question  put  by 
my  learned  friend,  who  will  do  me  the  justice  to 


ON   THE   TRIAL  OF  JOHN   FBOST.  171 

say  that  I  had  no  communication  with  him  upon 
any  such  question.  But  I  will  explain  myself  upon 
that,  M-  I  think  I  ought  to  do  upon  everything 
which  occurs  in  a  cause. 

Gentlemen,  if  words  of  this  sort  spoken  in 
France  are  a  crime,  I  know  from  his  lordship's 
authority,  as  well  as  the  authority  of  every  prin- 
ciple of  settled  law,  that  I  cannot  give  them .  in 
evidence ;  and  if  acts  done  in  France  amount  to  a 
crime  against  the  law  of  this  country,  I  know  also 
1  ought  not  to  give  in  evidence  upon  an  indictment 
such  as  this  is,  any  evidence  with  respect  to  the 
act  so  done.  They  ought  to  be  the  subject  of  a 
separate  prosecution ;  and  if  ray  opinion  had  risen 
higher  upon  that  subject  than  it  does,  I  would  not 
in  the  prosecution  of  this  case  have  even  risked 
such  a  question  as  that,  whether  certain  acts  can 
be  done  and  declarations  made  in  another  country 
by  a  subject  of  this  country  without  his  being 
amenable  to  the  law  of  this  country?  It  is  a 
question  that  ought  to  be  tried,  if  it  is  to  be  tried 
at  all,  in  a  more  solemn  form  than  taken  as  a  mere 
collateral  point  in  evidence.  But  was  not  I  enti- 
tled to  speak  about  France  ?  Did  not  this  gentle- 
man state,  that  things  were  going  on  well  in 
France ;  that  he  had  come  from  France ;  that  it 
was  his  intention  to  go  again  to  France,  and  that, 
according  to  that  intention,  he  did  go  to  France  ? 
Is  not  this  evidence  that  he  knew  what  he  was 


172         REPLY    OF    THE   ATTORNEY-GENERAL 

saying — that  he  was  speaking  that  which  his  future 
acts  confirmed  ?  Then  how  does  it  appear,  that 
he  was  drunk,  or  at  least  so  much  so,  that  he  could 
not  speak  about  anything — that  he  could  not  cor- 
rectly speak  his  opinion  ?  It  is  clear,  that  he 
stated  a  fact  with  respect  to  what  he  was  to  do, 
that  the  future  act  of  his  life  corresponded  with  ; 
and  yet  my  learned  friend  says,  he  did  not  speak 
advisedly  at  all. 

Gentlemen,  another  observation  that  fell  from 
my  learned  friend  was,  with  respect  to  what  I 
have  stated  as  to  the  words,  "otherwise  well  dis- 
posed." Gentlemen,  give  me  leave,  in  the  first 
place,  to  call  your  attention,  as  far  as  my  Lord  may 
think  your  attention  ought  to  be  called  to  it,  to 
what  I  take  to  be  a  clear  distinction  in  the  law  of 
England.  Gentlemen,  if  words  of  their  own  efficacy 
and  import  manifest  a  seditious  intention,  the  utter- 
ing those  words  is  a  misdemeanor.  I  do  not  desire 
you  to  try  this  question  in  that  manner,  because  I 
again  repeat  what  I  said  toward  the  conclusion  of 
what  I  before  addressed  to  you,  that  if  you  should 
be  of  opinion  that  Mr.  Frost  did  not  utter  the 
words  advisedly  and  knowingly,  and  with  an  inten- 
tion to  work  the  mischief  this  record  imputes  to 
him,  I  do  not  desire  this  conviction ;  but  I  will  say 
this,  that  it  is  a  very  clear  distinction  in  law,  with 
respect  to  words  as  they  amount  to  high  treason. 
What  did  the  legislature  say  in  those  just  and 


ON    THE   TRIAL  OF  JOHN   FBOST.  1J3 

beautiful  passages  that  were  read  to  you  by  Mr. 
Erskine,  from  Mr.  Justice  Forster's  Reports  ? — that 
the  penalties  in  high  treason  are  so  exceedingly 
great,  that,  although  treasonable  words  were  spo- 
ken, yet  if  not  spoken  with  such  intention,  they 
would  not,  as  in  the  case  of  high  treason,  expose 
the  subject  to  those  pains  and  penalties.     Did  they 
mean  to  say  they  should  be  no  offence  at  all,  if  the 
conscience  of  the  jury  should  be  satisfied  that  they 
were  used  in  a  way  to  make  them  criminal?     By 
no  means.     But  if  you  are  of  opinion  that  these 
words  were  advisedly  spoken,  if  the  words  them- 
selves   import   that    seditious    intent   which    this 
record   ascribes   to  them,  I  say   it  fulls   directly 
within  the  principle  of  Mr.  Justice  Forster,  namely, 
that  it  would  be  competent  to  the  defendant  to 
give  evidence  of  his  general  demeanor  as  a  good 
subject  of  the  country,  to  show  that  he  had  not 
that  meaning,  which  is  the  prima  facie  sense  of  the 
words.     If  that  principle  be  just,  I  say  that  Mr. 
Frost  has  not  found  in  the  company  below  stairs, 
nor  has  he  found   upon  the  face  of  the  earth,  a 
single  person  to  state  to  you,  that  from  his  general 
demeanor,  when  he  uttered  these  words,   he  must 
not  have  had  the  fair  use  of  that  judgment  and 
disposition   which  conducts   him   through  general 
life.     I  say  no  more  about  it ;  I  am  sure  it  would 
have  been  competent  to  him  to  have  produced  such 
witnesses.     Gentlemen,   it   would   not    only   have 


174          REPLY   OF   THE   ATTORNEY-GENERAL 

been  competent  to  him,  but,  from  the  turn  the 
cause  has  taken,  it  was  made  almost  necessary.  If 
Mr.  Frost  was  drunk,  as  my  learned  friend  wishes 
you  to  believe,  from  what  Mr.  Taitt  said,  though  I 
think  his  evidence  will  bear  no  such  sense,  was 
there  no  man  up-stairs  who  could  have  stated  it? 
Was  there  no  man  who  saw  Mr.  Frost  in  the  course 
of  that  evening  that  could  have  stated  it  ?  Then 
what  is  it  that  Mr.  Taitt  says  upon  the  subject? 
He  does  not  mean  to  say  that  he  had  not  drank ; 
he  says  he  might  be  in  liquor,  and  he  did  say  he 
did  not  doubt  but  he  was  in  liquor,  but  he  had  not 
seen  him  before.  The  question  is,  whether,  when 
he  made  use  of  those  expressions,  he  made  use  of 
them  as  expressing  his  judgment  upon  the  subject, 
and  with  the  intent  that  this  record  ascribes  to 
him,  or  whether  he  was  so  far  bereaved  of  his 
judgment  by  ebriety  as  to  stand  before  you  enti- 
tling himself  to  the  benefit  of  this  excuse,  that  he 
ought  not  to  be  answerable  for  the  consequences 
of  these  acts  upon  that  ground  ?  and  it  would  be 
extremely  strange  if  a  jury  upon  this  ground  could 
acquit  Mr.  Frost.  Here  are  these  gentlemen  re- 
spectable in  their  situation,  and  what  have  they 
done  ?  According  to  what  they  conceived  to  be 
their  duty  as  subjects  of  the  country,  they  have 
been  furnishing  the  means  of  this  prosecution,  and 
they  have  not  thought  that  it  would  disgrace  them 
to  bring  before  a  jury  of  their  country  Mr.  Frost, 


ON   THE   TRIAL  OF  JOHN    FROST.  175 

to  relate  this  story,  that  he  stood  in  that  situation 
of  mind  in  which  my  learned  friend's  cross-exami- 
nation would  endeavor  to  place  him.  Whatever  is 
your  verdict,  it  is  contrary  to  my  duty  to  press  for 
it  against  your  impression  of  the  real  nature  of  the 
case;  but  the  true  question  will  be,  and  here  I  will 
not  avail  myself  at  any  length  of  that  privilege  my 
learned  friend  says  belongs  to  me,  whether  these 
words  were  advisedly  spoken  ?  Mr.  Frost  goes  in 
a  public  coffee-room,  asserts  that  they  were  doing 
very  well  in  France,  and  at  the  same  time  he  asserts 
that  it  was  because  there  was  a  doctrine  of  equality, 
and  a  doctrine  of  no  king,  at  that  time  established. 
But  was  it  an  equality  such  as  my  learned  friend 
has  stated  to  you  ?  No ;  the  equality  of  right  to 
personal  security,  to  personal  liberty  and  property, 
and  a  right  to  equal  laws,  was  asserted  indeed  in 
the  constitution  of  the  year  1789;  it  was  an  equal- 
ity which  left  every  man  in  possession  of  that  situ- 
ation which  the  constitution  had  assigned  him, 
from  the  King  on  the  throne  to  the  meanest  sub- 
ject, who  would  be  equally  entitled  to  the  benefit 
of  the  law  of  the  country  as  any  man  in  it ;  but 
that  equality  did  not  live  till  the  6th  of  November, 
1792.  Why  then,  equality  might  mean  one  thing, 
or  it  might  mean  another;  it  might  mean  the 
equality  of  1789,  or  it  might  mean  the  equality  of 
1792.  Then  a  stranger  comes  up  to  Mr.  Frost, 
and  feeling  a  great  deal  of  indignation  at  hearing 


176          REPLY    OF    THE    ATTORNEY-GENERAL 

this  doctrine  held,  he  says,  Sir,  what  do  you  mean 
by  equality?  Now  did  the  Duke  of  Richmond, 
did  Mr.  Pitt,  the  present  Minister  of  State,  who  has 
been  alluded  to,  did  my  learned  friend,  and  the 
other  persons,  who  are  very  respectable  men,  as  I 
readily  admit  them  to  be,  did  they  ever  give  such 
an  answer  as  Mr.  Frost  gave?  I  am  free  to  declare 
this  is  a  country  in  which  every  man  has  a  right 
to  his  opinion  temperately  discussed.  I  am  free  to 
say,  with  respect  to  my  learned  friend,  I  believe 
he  and  some  of  the  most  respectable  persons  in 
the  country  have  their  opinions  upon  that  sub- 
ject. I  believe  the  actual  quantum  of  political 
happiness  that  is  enjoyed  in  this  country,  is,  upon 
the  present  system  of  government,  far  beyond  that 
which  the  providence  and  favor  of  God  has  ever 
dispensed  to  any  nation  that  ever  lived  upon  the 
face  of  the  earth.  I  have  never  been  able  to  find, 
in  the  discordant  systems  of  those  respectable  per- 
sons, argument  enough  to  lead  my  mind  to  doubt, 
for  a  moment,  whether  I  should  not  sacrifice  my 
duty  to  my  country,  if  I  risked  a  change  upon  any 
principles  that  they  have  stated ;  but,  gentlemen, 
do  not  understand  me  to  say  that  I  am  wiser  than 
they  —  far  from  it.  But  I  say  it  is  my  duty  to 
exercise  my  best  judgment,  and  act  according  to  it. 
Gentlemen,  what  was  the  answer  that  Mr.  Frost 
gave?  "  I  will  tell  you  what  I  mean  by  equality; 
I  mean  no  king."  Have  any  of  those  gentlemen 


ON   THE  TRIAL  OF  JOHN   FROST.  177 

stated  such  language  ?  But  this  is  not  all ;  for 
that  which  is  no  act  of  deliberation  is  followed  up 
by  another  question  :  "  Why,  surely  you  cannot 
mean  that  there  is  to  be  no  king  in  this  country  ?" 
Says  Mr.  Frost,  "Yes,  no  king  in  any  country." 
Why,  gentlemen,  the  single  question  is  :  Is  it  the 
law  of  England  that  these  words  can  be  sjx)ken 
under  such  circumstances  with  impunity  ?  I  am 
free  to  say,  that  upon  the  be.st  information  I  can 
give  myself  UJKHI  the  subject,  I  cannot  feel  a  doubt 
that  the  law  of  England  does  not  permit  it.  I  say 
it  is  the  law  of  England,  that  where  men  will  hold 
language  of  this  sort  they  shall  be  deemed  guilty 
of  an  offence  against  the  law  of  England.  Why 
then,  what  am  I  to  do,  if  I,  standing  in  this  situa- 
tion, am  to  govern  myself  by  the  wisdom  of  the 
law  ?  I  say  it  is  my  duty  to  submit  to  your  deci- 
sion the  fact  upon  the  law  as  it  stands ;  if  my 
learned  friend  is  satisfied  that  the  law  is  not  so, 
he  has  one  course  before  him,  or  if  he  thinks  that 
the  law  ought  not  be  so,  he  has  another  before 
him.  But  is  the  Attorney-General  of  this  country 
to  say,  I  will,  in  the  regulation  of  my  official  con- 
duct, take  upon  me  to  say,  that  I  am  wiser  than 
the  legislature  of  this  country  ;  I  will  enforce  what 
I  plea.se,  let  the  exigency  of  the  country  be  what 
it  may  ? 

Gentlemen,  in  the  first  place  it  is  to  be  observed, 
that  the    language  of  that    act  of  Parliament  is 
12  B 


178          EEPLY    OF    THE    ATTORNEY-GENERAL 

exceedingly  strong  with  respect  to  malicious  and 
advised  speaking,  and  it  points  out  to  a  jury,  that 
they  are  to  have  distinct  evidence  of  the  intention. 
This  .species  of  the  intention  may  fall  under  a  dif- 
ferent consideration  ;  because  if  in  this  case  the 
words  import  the  intent  that  the  record  attributes 
to  them,  you  have  that  case  in  point  of  law,  that 
justifies  you  in  finding  the  defendant  guilty. 

Gentlemen,  having  stated  thus  much,  rather  with 
a  view  of  explaining  my  conduct  to  you,  than  for 
the  purpose  of  troubling  you  with  particular  obser- 
vations upon  the  evidence,  I  will  leave  the  case 
here.  I  think,  upon  the  best  consideration  that  I 
can  give  the  case,  that  the  late  Attorney-General 
did  right  to  bring  it  before  the  public.  I  should 
not  have  appeared  here  to-day,  if  I  had  not  thought 
it  right  so  far  as  to  bring  it  before  the  public ;  and 
the  reasen  I  do  it  is,  that  when  a  considerable 
number  of  His  Majesty's  subjects  in  a  respectable 
situation  feel,  my  learned  friend  says,  your,  verdict 
is  to  secure  us  from  being  in  a  situation  like  France, 
but  when  they  feel  that  these  words  were  uttered 
in  a  manner  that  has  led  them  to  think,  that  some 
of  the  most  valuable  blessings  they  enjoy  under  the 
constitution  of  this  country,  wedded  to  it  as  they 
are,  are  in  danger  when  this  language  is  publicly 
held;  I  say  it  is  fit,  as  between  the  Attorney- 
General  and  such  persons,  that  a  jury  of  the  coun- 
try should  say,  whether  such  words  shall  be  spoken 


ON   THE   TRIAL   OF   JOHN    FROST.  170 

with  absolute  impunity?  It  does  appear  to  me 
that  they  ought  not  to  escape  with  absolute  impu- 
nity ;  but  if  you  have  any  doubt  in  your  minds, 
you  will  find  a  verdict  for  the  defendant. 


Lord  Kenyon  having  summed  up  the  evidence,  the  jury 
retired  for  an  hour  aud  a  half,  ami  then  returned  with  a 
verdict  of  "Guilty."  The  prisoner  was  sentenced  to  six 
month's  imprisonment  in  Newgate,  to  stand  one  hour  in  the 
pillory  at  Charing  Cross,  and  to  be  stricken  off  the  roll  of 
attorneys,  a  disgrace  from  which  he  never  recovered. 


TEIAL 

OP 

ME.    PEEKY    AND    ME.    LAMBEET, 

EDITOR   AND    PRINTER    OF   THE    MORNING    CHROINCLB, 

FOE    A    LIBEL. 


THE  trial  of  Mr.  Perry  and  Mr.  Lambert  on  the  9th  of 
December,  A.D.,  1793,  derives  additional  importance  from 
the  fact  of  its  being  the  first  case  of  a  libel  tried  after  the  pas- 
sage of  Mr.  Fox's  celebrated  Libel  Act.  The  Attorney-Gen- 
eral's information  charged  the  defendants,  Mr.  Perry  and  Mr. 
Lambert,  as  editor  and  printer  of  the  Morning  Chronicle, 
with  publishing  an  address  of  a  society  for  political  informa- 
tion, held  at  the  Talbot  Inn,  at  Derby,  which  had  been  sent 
to  the  Morning  Chronicle  for  insertion,  in  the  ordinary 
course  of  business ;  neither  Mr.  Perry  nor  Mr.  Lambert 
having  had  any  kind  of  connection  or  correspondence  with 
the  authors. 

A  sufficient  presentation  of  the  facts  of  the  case  is  given 
in  the  following  extracts  from  the  address  selected  by  the 
Attorney-General  from  the  information  itself,  with  the  innu- 
endoes : 

"We  (meaning  the  society  aforesaid),  feel  too 
much  not  to  believe  that  deep  and  alarming  abuses 
exist  in  the  British  Government  (meaning  his  said 
Majesty's  Government  of  this  kingdom),  yet  we  are 


OF   MR.    PERRY   AND   MR.    LAMBEKT.  181 

at  the  same  time  fully  sensible  that  our  situation  is 
comfortable  compared  with  that  of  the  people  of 
many  European  kingdoms,  and  that  as  the  times 
are,  in  some  degree,  moderate,  they  ought  to  be 
free  from  riot  and  confusion. 

"  III.  Yet  we  think  there  is  sufficient  cause  to 
inquire  into  the  necessity  of  the  payment  of  seven- 
teen millions  of  annual  taxes,  exclusive  of  poor- 
rates,  county-rates,  expenses  of  collection,  etc.,  etc., 
by  seven  millions  of  people ;  we  think  that  these 
expenses  may  be  reduced,  without  lessening  the 
true  dignity  of  the  nation  (meaning  this  Kingdom), 
or  the  government  (meaning  the  government  of 
this  Kingdom),  and  therefore  wish  for  satisfaction 
in  this  important  matter. 

"  IV.  We  view  with  concern  the  frequency  of 
wars  (meaning,  amongst  others,  the  wars  of  his 
said  Majesty  and  his  subjects  with  foreign  powers), 
we  are  persuaded  that  the  interests  of  the  poor  can 
never  be  promoted  by  accession  of  territory,  when 
bought  at  the  expense  of  their  labor  and  blood ; 
and  we  must  say,  in  the  language  of  a  celebrated 
author,  we  who  are  only  the  people,  but  who  pay 
for  wars  with  our  substance  and  our  blood,  will  not 
cease  to  tell  kings  or  governments,  that  to  them 
alone  wars  are  profitable ;  that  the  true  and  just 
conquests  are  those  which  each  make  at  home  by 
comforting  the  peasantry,  by  promoting  agricul- 
ture and  manufactories,  by  multiplying  men  and 


182  INFORMATION   ON   THE   TRIAL 

the  other  productions  of  nature ;  that  then  it  is 
that  kings  may  call  themselves  the  image  of  God, 
whose  will  is  perpetually  directed  to  the  creation 
of  new  beings  ;  if  they  continue  to  make  us  fight 
and  kill  one  another  in  uniform,  we  will  continue 
to  write  and  speak  until  nations  shall  be  cured  of 
this  folly.  We  are  certain  our  present  heavy  bur- 
dens (meaning  burdens  of  the  subjects  of  this  king- 
dom), are  owing,  in  a  great  measure,  to  cruel  and 
impolitic  wars  (meaning  cruel  and  impolitic  wars 
entered  into  by  his  said  Majesty  against  foreign 
powers),  and  therefore  we  will  do  all  on  our  part, 
as  peaceable  citizens,  who  have  the  good  of  the 
community  at  heart,  to  enlighten  each  other,  and 
protest  against  them. 

"  V.  The  present  state  of  the  representation  of 
the  people  (meaning  the  representation  of  the 
people  of  this  kingdom  in  the  Parliament  thereof), 
calls  for  the  particular  attention  of  every  man  who 
has  humanity  sufficient  to  feel  for  the  honor  and 
happiness  of  his  country,  to  the  defects  and  corrup- 
tions of  which  we  are  inclined  to  attribute  unneces- 
sary wars,  etc.,  etc.  We  think  it  a  deplorable  case 
when  the  poor  (meaning  the  poor  of  this  king- 
dom), must  support  a  corruption  (meaning  corrup- 
tion of  the  representation  of  the  people  of  this 
kingdom  in  the  Parliament  thereof),  which  is  cal- 
culated to  oppress  them  (meaning  the  poor  of  this 
kingdom),  when  the  laborer  must  give  his  money 


OF  MR.    PERRY    AND   MR.    LAMBERT.  183 

to  afford  the  means  of  preventing  him  having 
a  voice  in  its  disposal,  when  the  lower  classes  may 
say,  we  give  you  our  money  for  which  we  have 
toiled  and  sweat,  and  which  would  save  our  fami- 
lies from  cold  and  hunger,  but  we  think  it  more 
hard  that  there  is  nobody  whom  we  have  delegated 
to  see  that  it  is  not  improperly  and  wickedly 
spent ;  we  have  none  to  watch  over  our  interests, 
the  rich  only  are  represented ;  the  form  of  govern- 
ment (meaning  the  government  of  this  Kingdom), 
since  the  revolution  is  in  some  (meaning  some), 
respects  changed  for  the  worst,  by  the  triennial 
and  septennial  acts  (meaning  acts  of  the  Parliament 
of  this  Kingdom) ;  we  lost  annual  Parliaments, 
besides  which,  the  wholesome  provisions  for 
obliging  (meaning  obliging),  privy  counsellors  to 
subscribe  their  (meaning  their),  advice  with  their 
names,  and  against  placemen  and  pensioners  sitting 
in  Parliament  (meaning  the  Parliament  of  this 
Kingdom),  have  been  repealed.  It  is  said  that  the 
voice  of  the  people  is  the  constitutional  control  of 
Parliament  (meaning  the  Parliament  of  this  King- 
dom), but  what  is  this  but  saying  that  the  repre- 
sentatives (meaning  the  representatives  of  the 
people  in  the  Parliament  of  this  Kingdom),  are  nat- 
urally inclined  to  support  wrong  measures,  and 
that  the  people  must  (meaning  must),  be  con- 
stantly assembling  to  oblige  them  to  do  their  duty. 
An  equal  and  uncorrupt  representation  (meaning 


184  INFORMATION   ON   THE   TKIAL 

representation  in  the  Parliament  of  this  kingdom), 
would,  we  are  persuaded,  save  us  from  heavy 
expenses,  and  deliver  us  from  many  oppressions ; 
we  will  therefore  do  our  duty  to  procure  this 
reform,  which  appears  to  us  of  the  utmost  import- 
ance. 

"  VI.  In  short,  we  see  with  the  most  lively  con- 
cern an  army  of  place-men,  pensioners,  (meaning 
persons  holding  places  and  pensions  under  the 
government  of  this  kingdom),  etc.,  fighting  in  the 
cause  of  corruption  and  prejudice,  and  spreading 
the  contagion  far  and  wide,  a  large  and  highly 
expensive  military  establishment  (meaning  the 
military  establishment  of  this  kingdom),  though 
we  have  a  well-regulated  militia;  the  increase  of 
all  kinds  of  robberies,  riots,  executions,  etc.,  though 
the  nation  (meaning  this  kingdom)  pays  taxes 
equal  to  the  whole  land  rental  (meaning  rental)  of 
the  kingdom,  in  order  to  have  his  property  pro- 
tected and  secured ;  and  is  also  obliged  to  enter 
into  separate  associations  against  felonious  depre- 
dations —  a  criminal  code  of  laws  (meaning  the 
criminal  code  of  laws  of  this  kingdom)  sanguine 
and  inefficacious — a  civil  code  (meaning  the  civil 
code  of  laws  of  this  kingdom)  so  voluminous  and 
mysterious  as  to  puzzle  the  best  understandings : 
by  which  means  justice  is  denied  to  the  poor  (mean- 
ing the  poor  of  this  kingdom),  on  account  of  the 
expense  attending  the  obtaining  it.  Corporations 


OF   MB.    PERRY   AXD   MR.    LAMBEUT.  185 

(meaning  corporations  of  this  kingdom)  under 
ministerial  or  party  influence,  swallowing  up  the 
importance,  and  acting  against  the  voice  of  the 
people  (meaning  the  j>eople  of  this  kingdom)  ; 
penalties  (meaning  penalties)  inflicted  on  those  who 
accept  of  offices  without  conforming  to  the  viola- 
tion of  their  consciences  and  their  rights,  the  voice 
of  free  inquiry  drowned  in  prosecutions,  and  the 
clamors  of  the  pensioned  and  interested;  and  we 
view  with  the  most  poignant  sorrow  a  part  of  the 
people  (meaning  the  people  of  this  kingdom)  de- 
luded by  a  cry  of  the  constitution  and  church  in 
danger,  fighting  with  the  weapons  of  savages  under 
the  banners  of  prejudice  against  those  who  have 
their  true  interest  at  heart — we  see  with  equal 
sensibility  the  present  outcry  against  reforms,  and 
a  proclamation  (meaning  his  said  Majesty's  royal 
proclamation)  tending  to  cramp  the  liberty  of  the 
press,  and  discredit  the  true  friends  of  the  people, 
receiving  the  support  of  numbers  of  our  country- 
men— we  see  the  continuation  of  oppressive  game 
laws  (meaning  the  game  laws  of  this  kingdom)  and 
destructive  monopolies ;  we  see  the  education  and 
comfort  of  the  poor  (meaning  the  poor  of  this 
kingdom)  neglected,  notwithstanding  the  enormous 
weight  of  the  poor-rates;  we  see  burdens  multipli- 
ed, the  lower  classes  (meaning  the  lower  classes  of 
the  subjects  of  this  kingdom)  sink  ing  into  poverty, 
disgrace,  and  excesses ;  and  the  means  of  these 


186  INFORMATION   ON    THE   TRIAL 

shocking  abuses  increased  for  the  purpose  of  re- 
venue for  the  same,  and  the  excise  laws  (meaning 
the  excise  laws  of  this  kingdom),  those  badges  and 
sources  of  oppression,  kept  up  and  multiplied ;  and 
when  we  cast  our  eyes  on  a  people  just  formed  in 
a  free  community,  without  having  had  time  to 
grow  rich  under  a  government  by  which  justice  is 
duly  administered,  the  poor  taught  and  comforted, 
property  protected,  taxes  few  and  easy;  and  at  an 
expense  as  small  as  that  of  our  pension  list — we 
ask  ourselves,  are  we  in  England?  Have  our  fore- 
fathers fought,  and  bled,  and  conquered,  for 
liberty  ?  And  did  they  not  think  that  the  fruits 
of  their  patriotism  would  be  more  abundant  in 
peace,  plenty,  and  happiness?  Are  we  always  to 
stand  still  or  go  backward  ?  Are  our  burdens 
(meaning  the  burdens  of  the  subjects  of  this  king- 
dom) to  be  as  heavy  as  the  most  enslaved  people  ? 
Is  the  condition  of  the  poor  (meaning  the  poor  of 
this  kingdom)  never  to  be  improved?  Great 
Britain  must  have  arrived  at  the  highest  degree  of 
national  happiness  and  prosperity,  and  our  situa- 
tion must  be  too  good  to  be  mended,  or  the  present 
outcry  against  reforms  and  improvements  is  inhu- 
man and  criminal;  but  we  hope  our  condition  will 
be  speedily  improved,  and  to  obtain  so  desirable  a 
good  is  the  object  of  our  present  association,  an 
(meaning  an)  union  founded  on  principles  of  bene- 
volence and  humanity,  disclaiming  all  connexion 


OF   MR,   PERRY   AND   MR.    LAMBERT.  IS? 

with  riots  and  disorders,  but  firm   in  our  purpose, 
and  warm  in  our  affections  for  liberty. 

VII.  Lastly,  we  invite  the  friends  of  freedom 
throughout  Great  Britain  to  form  similar  societies, 
and  to  act  with  unanimity  and  firmness,  till  the 
people  (meaning  the  people  of  Great  Britain)  be 
too  wise  to  be  imposed  upon,  ana  their  influence  in 
the  government  be  commensurate  with  their  dig- 
nity and  importance ;  then  shall  we  be  free  and 
happy.  By  order  of  the  society, '  S.  Eyre,  chair- 
man (meaning  the  chairman  to  the  said  society)." 

In  Trinity  term  a  rule  was  made  in  the  usual 
way,  on  the  motion  of  the  prosecutor,  for  a  special 
jury.  Forty-eight  jurors  were  struck ;  and  in 
Easter  term  they  were  reduced  by  the  parties  to 
twenty-four.  In  the  sittings  after  Easter  the 
cause  came  on,  and  seven  of  the  special  jurors  came 
into  the  box.  Sir  John  Scott,  the  then  Attorney- 
General,  diil  not  pray  a  tales,  and  the  trial  went  off 
as  a  remanetpro  defectujuratorum. 

In  Michaelmas  term  the  prosecutor,  on  a  motion 
of  course,  took  out  a  rule  for  a  new  special  jury. 
This  the  defendants  thought  irregular. 

On  Friday,  the  15th  day  of  November,  the 
Hon.  Thomas  Erskine  moved  the  court  as  fol- 
lows : 

My  lord,  the  motion  which  I  am  about  to  ad- 
dress to  the  court  will  deserve  your  lordship's 
particular  attention,  as  it  relates  to  one  of  the 


188  INFORMATION   ON   THE   TRIAL 

most  essential  rights  and  liberties  of  the  subjcet, 
the  trial  by  jury. 

Your  lordship  may  recollect  that  at  the  sittings 
after  the  last  term  in  this  place,  an  information, 
filed  by  the  Attorney-General,  against  the  proprie- 
tors and  printer  of  the  Morning  Chronicle,  for  a 
supposed  libel  in  that  newspaper,  was  called  on  for 
trial  in  the  ordinary  course  of  things.  £even  of 
the  special  jurors,  struck  under  the  rule  obtained 
by  the  Crown  itself  for  the  trial  of  the  cause, 
appeared,  and  came  into  the  box  to  be  sworn;  but 
the  Attorney-General  did  not  think  proper  to  pray 
a  tales  to  complete  the  panel.  The  cause,  therefore, 
of  course,  went  off  pro  defectu  juratorum. 

My  lord,  if  any  special  reason  existed  why  the 
jury  so  appearing  should  not  be  permitted  to  try 
the  information  when  it  came  on  again  for  trial, 
and  the  Crown  had  moved  upon  such  special  mat- 
ter, verified  by  affidavit,  to  discharge  the  original 
rule  under  which  jury  was  appointed,  I  should, 
according  to  the  nature  of  the  objections,  have 
been  prepared  to  give  them  an  answer.  But,  my 
lord,  no  such  proceedings  have  been  had  or 
attempted.  The  Crown  has  made  no  objection  to 
the  jurors,  nor  any  motion  in  court  to  discharge 
the  original  rule  under  which  the  jury  was  impan- 
eled ;  ^but  assuming  it  to  be  the  law  that  the  rule 
was  spent  and  expired,  by  the  trial  going  over,  for 
defect  of  jurors,  they  have,  as  a  motion  of  course, 


OF   MR.   PERRY   AND   31 R.    LAMBERT.  189 

drawn  up  under  the  signature  of  counsel  out  of 
court,  obtained  a  second  rule  for  striking  a  jury, 
as  if  no  former  rule  had  ever  existed,  and  as  if  no 
jury  had  been  struck  under  it. 

I  confess  I  was  not  a  little  surprised  at  this 
attempt  to  impannel  a  jury,  without  the  consent 
of  the  defendants,  between  whom  and  the  Crown 
the  former  had  been  reduced  and  ascertained 
under  the  first  rule.  On  their  part  I  therefore 
now  object  to  the  proceeding,  as  totally  illegal  and 
hostile  to  the  freedom  of  trial ;  and  I  humbly 
move  that  this  new  rule  may  be  discharged. 

I  do  not  know  that  I  am  able  to  state,  at  this 
moment,  any  direct  precedent  for  my  motion,  nor 
is  it  necessary  that  I  should,  lx?cause  I  found  my 
application  upon  the  whole  statute  law  of  the 
Kingdom  respecting  the  trial  by  jury,  which  is 
positive  and  unequivocal  on  the  subject,  which  no 
practice  can  shake,  and  which  no  decisions  of  the 
court,  if  there  were  any,  could  repeal  or  overrule. 

Lord  Kenyan.  The  application  crosses  all  my 
ideas  of  the  law  upon  the  subject.  It  would  be 
highly  dangerous  to  impartial  trial  if  the  juries 
were  known  to  the  parties  so  long  before  the  trial. 
It  is  very  strange  if  the  law  be  so. 

Mr.  Erskine.  My  lord,  the  authors  of  our  laws 
seem  to  have  thought  very  differently  on  this  sub- 
ject. They  seem  to  have  entertained  no  jealousy 
that  the  trial  by  the  country,  which  was  instituted 


190  INFORMATION   ON    THE   TRIAL 

for  the  people's  protection,  could  ever  be  too 
favorable  to  them ;  on  the  contrary,  the  most 
ancient  statutes  of  the  kingdom  express  no  fears 
for  the  Crown,  but  for  the  subject  only,  and  pro- 
vide that  jurors  shall  be  struck  so  long  before  the 
day  of  trial,  that  the  defendant  may  know  them, 
and  be  prepared  to  take  his  challenges.  The  act 
of  the  42nd  of  Edward  III.  chap.  11,  expressly 
gives  this  reason.  After  stating  that  divers  of 
the  people  had  been  disheartened  and  oppressed 
from  not  having  had  knowledge  beforehand  of 
those  who  were  to  pass  in  the  inquest,  it  enacts 
that  the  names  of  the  jurors  should  be  returned 
into  court  in  the  term  before  the  assizes,  and  that 
in  the  mean  time,  the  parties  on  demand  should 
view  the  same. 

The  whole  statute  law,  from  that  period,  speaks 
the  same  language,  down  to  the  famous  statutes  of 
King  William  and  Queen  Anne,  which  give  to 
defendants,  accused  of  high  treason,  the  names  and 
abodes  not  merely  of  the  jurors,  but  of  the  very 
witnesses  to  be  examined  against  them  on  the  trial. 
So  far,  indeed,  is  it  from  being  true,  that,  by  the 
common  law,  a  jury  once  summoned  and  not  attend- 
ing, could  not  be  distrained  again  to  appear  at  a 
future  day,  as  is  supposed  by  Mr.  Justice  Page,  in 
Master  man's  note,  that  they  were  bound  to  give 
their  attendance  from  assizes  to  assizes,  in  infinitum, 
until  the  reign  of  William,  the  Third. 


OF   MB.    PERRY   AND   MR.    LAMBERT.  191 

The  statute  of  the  13th  Edward  I.  chapter  30» 
had  expressly  directed  that,  upon  the  default  of 
jurors,  the  justices  should  put  in  the  inquest  no 
other  than  those  first  summoned ;  and  this  regula- 
tion was  so  much  the  settled  law,  that  the  act  of 
William,  for  the  ease  of  jurors,  and  the  regulation 
of  trial,  recites  that,  as  the  law  then  stood,  it  often 
happened  that  upon  causes  going  off  at  the  ftflfllffB, 
for  defect  of  jurors,  the  same  jurors  were  obliged 
to  attend  again  and  again  at  the  trial  of  one  and 
the  same  cause,  to  their  great  expense  and  trouble. 
And  after  this  preamble,  a  new  venire  facias,  for 
the  first  time  in  the  history  of  the  law,  was  given 
to  the  parties  to  bring  in  a  new  jury,  upon  the 
default  of  those  impaneled  under  the  first  writ. 
It  is  therefore  only  by  the  effect  of  this  statute  that 
a  jury,  once  summoned,  is  discharged  before  trial ; 
and  the  statute  not  extending,  nor  indeed  relating 
at  all  to  special  juries,  they  remain  upon  the  old 
footing.  Special  juries  do  not  exist,  as  many  people 
seem  to  suppose,  by  the  authority  of  a  statute  ;  on 
the  contrary,  they  are  as  ancient  as  the  law  itself, 
and  were  always  struck,  as  they  are  at  this  day,  by 
direction  of  the  court,  when  trials  were  had  at  the 
bar  and  not  at  nisi  prius ;  the  act  of  the  3rd  of 
<;«-,, rur  II.  chapter  U">,  having  no  ivl:iti«>M  t"  .-m-h 
juries,  except  as  it  removes  a  doubt  with  regard  to 
the  legality  of  striking  them  for  the  trial  of  misde- 
meanors. This  legality  the  statute  recognizes ;  and 


192  INFORMATION   ON    THE    TRIAL 

putting  special  juries,  struck  in  the  Crown  office,  on 
the  same  footing  with  those  in  civil  cases,  directs 
them  to  be  struck  by  rule,  as  they  anciently  were 
in  cases  of  trial  at  bar,  and  enacts  that  the  jury  so 
struck  shall  be  the  jury  to  try  the  cause. 

Indeed,  so  notorious  is  it,  that  a  jury  summoned, 
and  not  attending,  could  be  distrained  to  appear 
again,  till  the  law,  as  far  as  it  related  to  common 
juries,  was  altered  by  the  statute  of  King  "William, 
that  we  know  that  the  whole  jury  process  of  the 
courts  at  this  day  is  founded  upon  that  law ;  for 
the  venire  is  always  returnable  on  the  last  day  of 
the  term  before  trial,  at  which  day  it  is  entered  on 
record,  as  of  course,  that  default  was  made  by  the 
jurors  summoned  ;  and  then  the  distringas  issues  to 
bring  them  in  on  the  day  in  bane,  in  the  term  fol- 
lowing, unless  the  justices  shall  come  to  the  assizes 
in  the  interval,  under  which  clause  of  nisi  prius  the 
trials  are  all  had.  So  that  the  process  at  this  day, 
building  fiction  on  reality,  to  give  precision  and 
uniformity  to  practice,  ratifies  that  which  is  sup- 
posed now  to  have  been  contrary  to  all  practice 
whatsoever.  In  ancient  times,  every  man  in  a  civil 
cause  knew,  upon  the  return  of  the  venire  in  term, 
the  jury  that  was  to  come  at  the  assizes.  The 
sheriff  now,  by  the  act  of  the  3rd  of  George  II., 
returns  one  panel  for  all,  which  effectually  pre- 
vents a  defect  of  jurors ;  but  special  juries  remain 
untouched  by  that  statute.  The  reason  and  justice 


OF   MR.   PERRY  AND   MR.   LAMBERT.          103 

of  the  thing,  moreover,  support  my  construction. 
The  Attorney-General  alone  can  pray  a  tales  in  a 
criminal  cause,  for  the  statutes  go  no  farther  than 
to  give  defendants  a  right  to  pray  the  tales  in  penal 
actions,  prosecuted  qui  tarn  with  the  Crown,  hut  not 
in  cases  where  the  Crown  is  the  prosecutor  alone. 
It  is  true  that  the  Attorney -General  now  grants  his 
warrant  of  course  to  a  defendant  to  pray  one,  hut 
he  may  legally  refuse  it ;  and  the  subject's  liberties 
are  not  to  rest  upon  the  courtesies  of  the  officers 
of  the  Crown.  What,  then,  is  contended  for  in  this 
right  to  change  the  jury  ?  Why,  nothing  short  of 
this,  that  if  the  Attorney-General  does  not  like  his 
jury,  he  may  forbear  to  pray  a  tales  himself;  he 
may  also  refuse  his  warrant,  without  which  the 
defendant  cannot  pray  one ;  and  this  he  may  do, 
to!  i,*  quoties  until  he  has  got  a  jury  to  his  fancy.  I 
am  not  arguing  that  Mr.  Attorney-General  is  likely 
to  attempt  this  practice  for  such  purposes ;  but  the 
country  is  not  to  hold  its  rights  upon  the  courtesy 
of  the  prerogative,  or  the  honesty  of  those  who 
may  occasionally  represent  it. 

Mr.  Erskine  then  proceeded  to  state  the  modern 
cases,  which  clearly  showed  that  the  practice  of  the 
court  bore  him  out  in  the  law  on  the  subject.  He 
stated  the  King  v.  Hart,  and  the  King  v.  Joddrell ; 
but  he  relied  implicitly,  he  said,  on  the  law. 

One  of  the  officers  of  the  Crown  office  handed  up 
to  Mr.  Justice  Buller,  an  opinion  of  Judge  Page, 
13  B 


194  INFORMATION   ON    THE   TRIAL 

in  the  13th  of  George  II.,  that  a  new  jury  ought  to 
be  granted;  but  Mr.  Justice  Buller  said,  the  de- 
fendants should  take  a  rule  to  show  cause,  as  it 
was  of  great  importance  to  be  argued  and  ascer- 
tained. 

Lord  Kenyan  said,  he  thought  it  scarcely  neces- 
sary ;  but  granted  they  might  take  a  rule.  A  rule 
was  therefore  granted. 

On  Monday,  the  25th  of  November,  1792,  the 
rule  came  on  to  be  argued. 

Mr.  Beareroft,  on  the  part  of  the  Crown,  contend- 
ed that  the  cases  cited  by  Mr.  Erskine  were  not  in 
point.  In  the  case  of  the  King  against  Hart,  the 
special  jury  of  forty-eight  had  not  been  reduced  to 
twenty-four  by  the  parties,  and  the  jurors  had  not 
come  into  court.  In  the  case  of  the  King  against 
JolifFe,  the  cause  had  been  put  off  on  account  of 
some  publications,  which  might  have  influenced 
the  jury.  In  the  next  term,  a  new  jury  was  struck, 
so  that  the  case  was  in  point  for  the  Crown,  and  it 
was  so  much  the  more  so,  as  the  new  jury  was  mov- 
ed for  by  a  solicitor  as  well  versed  in  the  general 
practice  as  any  solicitor  of  that  court.  Their  lord- 
ships would  agree  with  him  in  this  description, 
when  they  heard  that  the  solicitor  for  the  defend- 
ant in  that  cause  was  Mr.  Lowten,  and  he  was 
solicitor  also  for  the  present  defendants.  In  that 
cause,  then,  Mr.  Lowten  had  moved  for  a  new  trial, 
and  here  he  opposed  a  new  jury.  [Mr.  Beareroft 


OF   MR.   PERRY   AND   MR.    LAMBERT.  195 

was  set  right  in  the  case  of  Joliffe.  In  that  instance 
the  trial  first  went  off,  because,  from  the  publica- 
tions which  had  been  made,  the  court  thought  that 
the  jury  might  be  influenced.  In  the  term  after 
this,  the  cause  came  on  again,  and  both  parties 
agreed  to  have  a  new  jury.  A  second  time  it  was 
put  off,  through  the  delicacy  of  Mr.  Justice  Gould  ; 
and  on  the  third  time  it  was  brought  on  again,  and 
the  prosecutor  moved  for  a  new  jury,  without  any 
pretext  of  influence,  or  of  any  other  argument  for 
a  new  jury.  This,  Mr.  Lowton,  as  solicitor  for  the 
defendant  (and  who  had  not  been  employed  in  the 
beginning  of  the  cause),  objected  to,  and  the  court 
refused.] 

Mr.  Bearcroft  read  from  the  notes  of  the  late 
Mr.  Masterman,  one  of  the  secondaries  of  the  crown 
office,  a  case,  where  it  was  his  opinion,  that  a  new 
jury  was  conformable  to  the  practice;  and  he 
quoted  also  a  cause  against  Lord  Charles  Fitzroy, 
where  Mr.  Lowton  had  also,  as  solicitor  for  the 
defendant,  moved  for  a  new  jury,  and  had  suc- 
ceeded ;  but  he  owned,  that  in  this  case  it  had 
been  consented  to  by  both  parties. 

Mr.  Bearcroft  then  said  he  would  argue  the 
question  on  the  reason  of  the  rule.  It  struck  him 
as  a  most  important  point  indeed,  that  juries  should 
not  be  continued  from  term  to  term,  as  they  might 
be  tampered  with  by  the  parties ;  a  thing  so  out- 
rageous to  justice,  and  so  opposite  to  the  spirit  of 


196  INFORMATION   ON    THE   TRIAL 

our  jurisprudence,  that  it  had  been  ever  the  study 
of  the  courts,  and  indeed  the  very  aim  of  Parlia- 
ment, in  making  the  statute  of  the  3rd  of  George 
II.  to  prevent  juries  from  becoming  permanent,  or 
from  being  so  long  known  beforehand,  as  to  be 
subject  to  influence.  That  in  regard  to  the  prayer 
for  a  tales,  though  undoubtedly  the  defendant  must 
have  the  warrant  of  the  Attorney-General  to  enable 
him  to  pray  a  tales,  yet  the  Attorney-General  never 
denied  such  a  warrant.  Another  argument  against 
the  continuance  of  a  jury  was,  that  it  must  subject 
gentlemen  to  great  inconvenience — they  never 
would  know  when  they  were  to  be  discharged.  Here 
seven  of  them  attended  to  do  their  duty,  and  they 
were  again  to  be  called  upon ;  eleven  of  them 
might  attend,  and  still  be  subject  to  be  called 
again;  there  was  no  end  of  this,  and  he  owned  he 
did  not  know  how  they  could  call  upon  them  again, 
for  he  did  not  know  an  instance  of  an  alias  distrin- 
gas  to  bring  up  special  jurors. 

Mr.  Adam  stated,  on  the  part  of  the  defendants, 
that  there  were  many  instances  in  the  books,  espe- 
cially in  Brooke's  Abridgment,  where  an  alias 
distringas  had  gone  to  compel  the  attendance  of 
jurors  of  all  descriptions. 

Mr.  Justice  Buller  said  that  as  this  case  compre- 
hended so  important  a  rule  of  practice  he  had 
taken  pains  to  inform  himself  on  the  point,  and 
he  had  found  a  case  which,  in  his  mind,  determined 


OF  MB.   PEERY   AND  MR.    LAMBERT.  197 

the  rule.  He  would  read  it,  and  then  Mr.  Bear- 
croft  would  see  what  he  could  make  of  the 
argument  Mr.  Justice  Buller  then  read  a  manu- 
script note  of  the  case  the  King  v.  Franklin,  the 
puhllsher  of  the  famous  paper  called  the  Crafts- 
man. It  was  important  to  remark  the  time  and 
the  judges — it  was  the  5th  of  George  II.  only 
three  years  after  the  law  recognizing  special  juries 
in  misdemeanors  had  passed,  and  the  judges  on  the 
bench  were  Mr.  Justice,  afterwards  Lord  Chief 
Justice  Lee,  Mr.  Justice  Page,*  etc.;  and  the  Crown 
lawyers  were  men  of  the  first  eminence.  Frank- 
lin was  convicted  of  printing  and  publishing  a 
libel  in  the  Craftsman.  The  case  was  only  so  far 
different  from  the  present  that  the  defendant  there 
moved  the  court  to  reverse  the  judgment,  because 
the  cause,  after  being  put  off  from  one  term  to 
another,  had  not  been  tried  by  a  new  jury.  Here 
the  defendants  moved  to  continue  the  same  jury. 
The  doctrine  was  the  same  in  both  cases,  only  that 
in  this  case  it  is  upon  the  application  of  the 
Attorney-General  that  the  new  jury  is  required  ;  in 
that  case  the  Attorney-General  or  the  Crown  con- 
tended that  the  old  jury  should  continue.  Chief 
Justice  Lee  pronounced  the  opinion  of  the  court, 
which  Mr.  Justice  Buller  read.  The  opinion  of 
the  court  was,  that  the  words  of  the  statute  were 

*  The  same  judges  who  are  supposed  to  hare  decided  the  case  of 
the  King  against  Waring. 


198  INFORM ATION   ON   THE   TRIAL 

express,  and  could  not  be  departed  from,  unless 
cause  could  be  shown  that  there  had  been  some 
irregularity  in  the  striking  of  the  jury,  or  in  the 
reducing,  or  in  some  part  of  the  proceeding,  or  in 
the  writ  of  venire,  or  otherwise.  The  words  of 
the  statute  were,  "that  the  jury  so  struck  and  so 
reduced  shall  be  the  jury  to  try  the  issue  joined  in 
such  cause."  The  jury  were  not  dissolved  until 
the  cause  was  determined,  and  an  alias  distringas 
might  issue.  The  opinion  was  at  great  length, 
and  detailed  the  practice  of  striking  juries  by  the 
ancient  statutes  downwards,  and  showed  that  by 
the  act  then  recently  passed,  the  llth  of  George 
II.  the  alteration  with  respect  to  juries  related  only 
to  the  common  jury,  and  left  the  practice  as  to 
special  jurors  exactly  as  it  stood  by  the  ancient  law, 
except  as  it  declared  that  special  jurors  might  be 
demanded  by  the  Crown  in  cases  of  misdemeanor. 
In  regard  to  common  juries,  it  was  thought  hard 
and  severe  to  compel  their  attendance  from  time 
to  time;  but  the  special  jury  was  left  by  that  act 
precisely  as  it  stood  before.  This  opinion,  Mr. 
justice  Buller  said,  delivered  so  soon  after  the  act 
had  passed,  so  solemnly  and  argumentatively,  in  a 
question  discussed  by  such  great  legal  characters, 
must  in  his  mind,  determine  the  question.  He 
concluded  with  saying,  that  he  could  not  see  how 
the  Crown  officers  could  go  on  without  creating 
errotf  on  the  record. 


OF   MR.    PERRY   AND   MR.    LAMBERT.  199 

Lord  Chief  Justice  Kenyan  said,  he  must  bow  to 
such  great  authority,  though  the  inclination  of  his 
disposition  was  the  other  way.  But  a  point  so 
solemnly  argued  (and  where  such  a  man  as  Mr. 
Pulteney,  Earl  of  Bath,  heing  implicated,  error 
would  have  been  pleaded,  if  they  could  have  found 
error  on  the  record),  must  decide  the  present  case. 
He  made  no  inquiry  at  all,  and  did  not  take  into 
his  consideration  the  merits  of  the  question  at  issue 
between  the  present  parties ;  but  it  was,  in  his 
opinion,  of  the  utmost  interest  to  criminal  jurispru- 
dence, that  juries  should  not  be  subject  to  influence. 
It  was  that  consideration  which  gave  rise  to  the 
law  for  the  balloting-box.  Every  lawyer  knew  the 
necessity  that  there  was  for  that  statute ;  as  all 
the  provisions  which  had  been  previously  made  to 
guard  against  influence,  had  proved  ineffectual, 
though  any  person  convicted  of  trying  to  influence 
jurors,  was  subject  to  a  penalty  of  ten  times  the 
amount  of  the  object  at  issue  in  the  cause.  What 
held  good  as  to  civil  suits  was  equally  applicable 
to  criminal  prosecutions.  The  principle  of  the 
balloting-box  was  equally  applicable  to  both  ;  but 
it  was  impossible  to  resist  the  precedent,  standing 
as  it  did  upon  so  high  authority. 

Mr.  Justice  Grose  and  Mr.  Justice  Ashhurst  were 
of  the  same  opinion. 


200  INFORMATION   ON    THE  TRIAL 

The  case   of  the   King   v.    Franklin,*   therefore, 

*  In  consequence  of  that  case,  viz.  :  the  King  v.  Franklin,  it  became 
unnecessary  for  Mr.  Erskine  and  Mr.  Adam,  as  counsel  for  the  defend- 
ants, to  say  anything  on  the  part  of  the  defendants ;  but  it  may  not 
be  unacceptable  to  know,  by  a  short  statement,  how  far  the  old  prac- 
tice confirms  the  good  sense  and  authority  of  the  case  of  the  King  v. 
Franklin. 

Special  juries  existed  long  before  the  statute  of  the  third  George 
II.,  by  the  act  of  the  parties;  and  that  as  well  in  misdemeanor  as  in 
other  cases.  One  party  applied  for  a  special  jury,  and  the  other 
party  consented;  so  that  the  special  jury  was  then  the  result  of  com- 
pact between  the  parties.  But  when  the  parties  had  so  contracted,  the 
authority  of  the  court  was  necessary  to  give  validity  to  the  compact. 
Accordingly  the  court,  upon  application,  made  a  rule  for  a  special 
jury;  and  that  rule  ran  in  the  same  words  before  the  statute,  that 
are  used  now  since  the  statute ;  an  observation  very  material,  espe- 
cially in  considering  the  last  words.  The  rule  ordered  then,  and  it 
orders  now,  that  forty-eight  shall  be  returned  ;  that  the  prosecutor 
shall  strike  twelve  and  the  defendant  twelve;  and  that  twenty-four, 
the  remainder  of  the  forty-eight,  shall  be  the  jury  returned  for  the 
trial  of  the  issue  joined  in  that  cause. 

This  being  agreed  between  the  parties,  and  enforced  by  a  rule  of 
court,  the  parties,  before  the  statute,  chose  their  forum,  and  by  this 
forum,  their  own  compact,  and  the  authority  of  the  rule  of  court 
compelled  them  to  abide;  insomuch,  that  they  could  not  get  quit  of 
the  jury  by  the  common  mode  of  challenging  the  array;  that  is, chal- 
lenging the  whole  panel  of  jurors;  such  challenge,  after  the  rule  of 
court,  being  deemed,  like  every  other  breach  of  the  authority  of  the 
court,  a  contempt,  by  the  party  who  should  so  challenge. 

This  had  met  with  a  decision  in  several  cases,  but  particularly  in 
the  case  of  the  King  v.  Burridge,  for  a  misdemeanor,  which  came 
before  the  Court  of  King's  Bench,  in  Trinity  Term,  10  George  I.,  a 
very  short  time  before  the  passing  of  the  act  respecting  special  juries. 

That  case  is  reported  in  Lord  Strange' s  Reports,  vol.  I.,  p.  593 ;  in 
Lord  Raymond,  1864;  in  Andrew's  Reports,  52;  in  Eighth  Modern 
Reports,  245  ;  and  in  many  other  books ;  and  the  case,  as  reported 
in  all  of  them,  not  only  confirms  the  argument  and  statement  above 
given,  but  explains  the  only  remaining  difficulty  in  the  case,  viz. :  the 
meaning  to  be  put  upon  the  words  in  the  rule  of  court,  that  the 
twenty-four  shall  be  the  jury  returned  for  the  trial  of  the  issue  in 
that  cause. 

For  the  judges,  in  the  reports   given  of  their  opinions,  consider  as 


OF   MR.   PERRY   AND  MR.    LAMBERT.  201 

decided  this  question ;  and  the  court  determined, 
that  the  rule  for  another  special  jury,  obtained 
upon  the  motion  of  the  Crown  lawyers,  must  be 
discharged. 

synonymous,  ami  meaning  the  same  thing,  the  above  phrase  ;  And  thnt 
they  shall  be  the  jury  who  shall  actually  try  the  cause;  contrary  to  the 
construction  contended  for  by  the  Crown,  on  the  present  occasion,  where 
it  was  pressed  that  the  statute  and  the  rule  were  both  satisfied,  when 
the  jury  had  been  returned,  although  they  had  not  actually  tried  the 
, 

Soon  after  this  case,  that  is,  in  the  3d  George  II.  came  the  statute; 
and  it  is  very  material  to  observe,  that  the  statute  transcribes  verb*, 
tim  the  latter  words  of  the  rule  used  before  the  statute.  Therefore 
whatever  wan  the  construction  of  those  words  in  the  rule,  the  MOM 
must  be  their  construction  in  the  statute.  It  has  been  shown  in 
what  sense  the  judges  considered  the  words  in  the  rule,  and  it  will 
not  be  contended  that  the  words  in  the  statute.  "  which  said  jury,  so 
struck,  shall  be  the  jury  returned  for  the  trial  of  the  said  issue,"  can 
bear  a  different  construction.  There  is,  therefore,  judicial  authority, 
added  to  that  of  common  sense,  to  settle  the  meaning  of  these  words. 
The  only  other  consideration  in  this  case  is,  what  change  the  statute 
made  in  the  rights  of  the  parties,  if  it  made  none  from  the  words  of 
the  rule  ;  and  it  is  evident  that  it  did  no  more  than  convert  into  a 
statutory  obligation,  carried  into  execution  by  a  rule  of  court, 
what  had  been  a  matter  of  compact,  executed  by  a  rule  of  court ;  but 
that  in  all  other  respects,  except  that  the  one  party  was,  after  the 
statute,  bound  to  agree  to  a  special  jury,  if  the  other  proposed  it,  the 
consequences  were  the  same. 

The  disobedience  to  the  rule  remained  a  contempt,  and  the  rule 
remained  valid,  unless  the  court,  for  particular  cause  of  corruption, 
or  undue  interference,  properly  verified,  should  see  ground  to  have 
another  jury ;  but  that  otherwise,  the  jury  of  compact  or  statute 
must  continue. 

This  was  the  more  material,  because  of  the  Attorney-General's  power 
to  refuse  the  defendant  a  warrant  to  have  a  tales,  to  make  up  the  spe- 
cial jury,  if  deficient,  out  of  the  common  jury,  which  was  so  far 
from  being  an  idle  right,  as  mentioned  by  Mr.  Bearcroft,  that  there 
was  a  case  in  which  it  was  solemnly  agitated,  and  which  formed  a 
ground  of  decision  that  the  attorney  could  and  ought,  in  certain  cases, 
to  exercise  the  right.  The  King  v.  Jacob  Banks,  Sixth  Modern  lie- 
ports,  p.  240,  as  follows : 


SPEECH  OF  THE  ATTORNEY-GENERAL. 


On  the  9th  of  December,  1793,  the  cause  having 
been  called  on  for  trial,  Mr.  Attorney-General 
opened  the  case  for  the  Crown  as  follows : 

GENTLEMEN  OF  THE  JURY  :  The  information 
charges  the  defendants  with  having  printed  and 
published  a  seditious  libel,  the  contents  of  which 
you  have  now  heard  stated.  The  information 
originally  was  not  filed  by  me,  but  by  my  prede- 
cessor in  office,  who  was  then,  as  you  now  are, 
sworn  to  discharge  an  important  duty  to  the  public 
according  to  the  best  of  his  judgment.  It  has  since 
fallen  to  my  lot  to  execute  that  duty,  in  stating  to 
you  the  grounds  upon  which  this  information  has 
been  filed.  And  I  have  no  difficulty  in  saying 

And  as  to  another  objection  that  was  made,  ''  that  such  a  course, 
if  tolerated,  would  be  of  great  mischief;  for  then  most  profligate 
offenders  would  get  themselves  acquitted  by  surprise,  or  over-hasten- 
ing the  trial,  without  allowing  the  Queen  convenient  time  to  manage 
her  prosecution." 

It  was  answered,  "  that  there  could  be  none,  because  in  Crown 
causes  there  cannot  be  nisi  prius  or  tales,  without  a  warrant  from  the 
Attorney-General,  who  shall  be  sure  to  grant  none  if  he  find  any  such 
danger."  And  that  such  a  thing  may  be,  at  least  by  consent,  appears 
I.  Keb.  195.  Rex.  v.  Jones.  And  the  granting  a  nisi  prius  amounts 
to  a  consent. 


TRIAL  OF  MR.  PERRY  AND  MR.  LAMBERT.      203 

that,  previous  to  my  coming  forward  for  this  pur- 
pose,  I  thought  it  incumbent  upon  me  to  consider 
whether,  in  the  office  which  I  now  hold,  I  should, 
of  my  own  accord,  have  instituted  this  prosecution  ; 
because  I  thought  that  it  became  me  not  merely  to 
follow  up  the  measures  of  that  highly  respectable 
character,  and  to  bring  his  opinion  before  a  jury, 
but  to  be  able,  in  so  doing,  to  say  that  I  approved 
of  those  measures,  and  concurred  in  that  opinion ; 
and  to  act  exactly  as  he  had  done,  according  to  the 
best  of  my  judgment,  for  the  public.  Had  I  been 
clearly  of  opinion  that  this  paper  was  not  fit  for 
the  consideration  of  a  jury,  I  have  no  hesitation  in 
confessing  that  I  should  certainly  have  discontinued 
the  prosecution.  You,  gentlemen  of  the  jury,  I  am 
sure,  will  do  me  the  justice  to  believe  that  I  am 
not  capable  of  the  impertinence  of  saying,  that 
because  I  m;iy  think  thi-  |<;IJ><T  lit  \'«r  prosecution, 
and  may  think  the  defendants  guilty,  you  therefore 
must  thiuk  so  too.  The  prosecution  does  nothing 
more  than  declare  that  the  paper  is  a  proj>er  sub- 
ject for  the  discussion  of  a  jury,  and  as  such,  that  I 
consider  myself  as  bound  to  bring  it  forward  in  the 
course  of  my  professional  duty.  With  respect  to 
the  guilt  or  innocence  of  the  defendants  in  publish- 
ing this  paper,  that  question  which  falls  to  your 
consideration  I  am  perfectly  satisfied  to  leave  to 
your  decision.  This  is  a  cause  of  the  highest  im- 
portance, as  indeed,  every  cause  which  involves  a 


204  SPEECH  OF  THE  ATTORNEY-GENERAL  ON  THE 

criminal  charge  must  be  important,  but  this  more 
particularly  so  from  the  nature  of  the  charge.  It 
is  connected  with  the  press,  which  has  ever  been 
deemed  the  great  palladium  of  British  freedom. 
In  every  case  in  which  it  is  concerned,  it  is  natural, 
therefore,  that  the  most  watchful  attention  of  Eng- 
lishmen should  be  excited.  It  is  of  .great  conse- 
quence, then,  in  the  first  instance,  to  ascertain  what 
properly  constitutes  the  liberty  of  the  press ;  what 
are  its  bounds,  and  how  far  it  extends;  and  on 
this  subject  I  shall  take  the  liberty  of  reading  to 
you  the  sentiments  of  a  character  of  the  highest 
legal  authority,  namely,  the  late  Mr.  Justice  Black- 
stone  : 

"  In  this  and  the  other  instances  which  we  have 
lately  considered,  where  blasphemous,  immoral, 
treasonable,  schismatical,  seditious,  or  scandalous 
libels  are  punished  by  the  English  law,  some  with 
a  greater,  others  with  a  less  degree  of  severity,  the 
liberty  of  the  press,  properly  understood,  is  by  no 
means  infringed  or  violated.  The  liberty  of  the 
press  is  indeed  essential  to  the  nature  of  a  free 
state ;  but  this  consists  in  laying  no  previous  re- 
straints upon  publications,  and  not  in  freedom  from 
censure  for  criminal  matter,  when  published.  Every 
freeman  has  an  undoubted  right  to  lay  what  senti- 
ments he  pleases  before  the  public.  To  forbid  this 
is  to  destroy  the  freedom  of  the  press.  But  if  he 
publishes  what  is  improper,  mischievous,  or  illegal, 


TRIAL  OF  MR.  PERRY  AND  MR.  LAMBERT.      205 

lie  must  take  the  consequences  of  his  own  temerity. 
To  subject  the  press  to  the  restrictive  j>ower  of  a 
licenser,  as  was  formerly  clone,  both  before  and 
since  the  revolution,  is  to  subject  all  freedom  of 
sentiment  to  the  prejudices  of  one  man,  and  make 
him  the  arb  trary  and  infallible  judge  of  all  con- 
troverted points  in  learning,  religion,  and  govern- 
ment; but  to  punish,  as  the  law  does  at  present, 
any  dangerous  or  offensive  writings,  which,  when 
published,  shall,  on  a  fair  and  impartial  trial,  be 
adjudged  of  a  pernicious  tendency,  is  necessary  for 
the  preservation  of  peace  and  good  order,  of  gov- 
ernment and  religion,  the  only  solid  foundation  of 
civil  liberty.  Thus,  the  will  of  individuals  is  left 
still  free;  the  abuse  only  of  that  free  will  is  the 
object  of  legal  punishment.  Neither  is  any  re- 
straint hereby  laid  upon  freedom  of  thought  or 
inquiry ;  liberty  of  private  sentiment  is  still  left ; 
the  disseminating  or  making  public  of  bad  senti- 
ments, destructive  of  the  ends  of  society,  is  the 
crime  which  society  corrects.  A  man,  says  a  fine 
writer  on  this  subject,  may  be  allowed  to  keep 
poisons  in  his  closet,  but  not  publicly  to  vend  them 
as  cordials.  And  to  this  we  may  add,  that  the 
only  plausible  argument  heretofore  used  for  the 
restraining  the  just  freedom  of  the  press,  'that  it 
was  necessary  to  prevent  the  daily  abuse  of  it/ 
will  entirely  lose  its  force,  when  it  is  shown,  by  a 
seasonable  exertion  of  the  laws,  that  the  press  can- 


206   SPEECH  OF  THE  ATTOKNEY-GENEBAL  ON  THE 

not  be  abused  to  any  bad  purpose,  without  incur- 
ring a  suitable  punishment ;  whereas  it  never  can 
be  used  to  any  good  one,  when  under  the  control 
of  an  inspector.  So  true  will  it  be  found,  that  to 
censure  the  licentiousness,  is  to  maintain  the  liberty 
of  the  press."  * 

These  principles  of  the  law  of  England,  thus 
laid  down  by  this  great  man,  must  be  admitted  to 
be  incontrovertible.  The  law  allowed  defendants 
in  this,  as  in  every  other  case,  a  fair,  impartial 
trial,  upon  the  result  of  which  they  were  to  be 
adjudged  guilty  or  acquitted  of  the  charge  exhibited 
against  them;  and  this  principle  has  been  ex- 
plained by  the  last  act  of  Parliament,  for  removing 
doubts  of  the  functions  of  juries  in  cases  of  libel; 
the  meaning  of  which  act  I  take  to  be,  that  the 
jury  shall  try  these  charges  of  libels  precisely  as 
they  try  any  other  charge  of  a  criminal  nature; 
that  they  shall  hear  the  case  with  attention,  and 
hear  it  impartially;  that  they  shall  hear  the  advice 
of  the  bench  in  point  of  law,  and  then  apply  the 
law,  as  they  understand  it,  to  the  facts  that  appear 
in  evidence,  and  then  they  shall  acquit  or  find 
guilty,  as  to  them  shall  appear  right.  The  ques- 
tion in  this  case  is,  "Whether,  upon  the  facts  as 
they  shall  appear  in  evidence,  under  the  law,  as 
you  shall  understand  it,  after  the  advice  of  the 

*  Blackstone's  Commentaries,  vol.  IV.,  page  151,  8vo.  edition,  1791. 


TRIAL  OP  MR.  PERRY  AND  MR.  LAMBERT.   207 

learned  judge,  the  defendants  be  guilty,  as  the 
information  charges  them  to  be?"  With  resj>ect 
to  the  fact,  the  paj>er  stated  in  the  information, 
appeared  in  the  Morning  Chronicle  on  the  25th  of 
December,  1702.  And  here  I  must  particularly 
beg  the  attention  of  the  jury  to  the  date  of  the 
libel.  This  paper,  charged  to  be  the  libel,  is  dated 
at  the  Talbot  Inn,  at  Derby,  on  the  10th  of  July, 
1792,  and  it  did  not  appear  in  the  Morning  Chron- 
icle till  the  25th  of  December,  17U2.  Tims  vou 

«/ 

will  observe  that  the  date  of  the  paper  preceded 
its  appearance  in  the  Morning  Chronicle  six 
months. 

Having  said  this  upon  the  paper  itself,  it  is  now 
my  duty  to  the  defendants  to  state,  that  it  ap- 
peared not  to  be  a  publication  actually  composed 
by  the  defendants,  but  was  said  to  be,  with  what 
truth  I  do  not  know,  composed  and  agreed  to  at 
a  society  for  political  information,  held  at  the 
Talbot  Inn,  Derby,  signed  S.  Eyre,  chairman. 
Whether  there  was  such  a  person,  or,  if  there  was, 
whether  he  was  the  author,  is  to  me  entirely  un- 
known. It  was  said  to  be  unanimously  agreed  to 
by  the  persons  holding  the  meeting,  and  ordered 
to  be  printed;  how  it  happened  that  that  order 
was  not  executed  till  the  25th  of  December,  I  am 
unable  to  explain  to  you.  But  be  that  circumstance 
as  it  may,  the  defendants  are  the  ]>ersons  interested 
in  the  property  and  management  of  the  newspaper 


208   SPEECH  OF  THE  ATTORNEY-GENERAL  ON  THE 

in  which  this  publication  appeared.  And  I  appre- 
hend that  the  proprietors,  printers,  and  publishers 
of  a  newspaper  are  responsible  for  whatever  it  may 
contain,  unless  it  be  admitted  as  a  doctrine,  that 
men  may  carry  on  a  trade,  which  is  a  source  of 
great  profit  and  emolument,  entirely  through  the 
medium  of  servants,  without  bejng  themselves  in 
the  smallest  degree  accountable.  Can  it  be  deemed 
a  sufficient  apology  for  the  evil  tendency  of  a  pub- 
lication, of  which  they  reap  the  advantage,  that 
they  are  not  its  authors,  or  that  they  had  no  im- 
mediate hand  in  its  insertion,  and  therefore  are  not 
bound  to  answer  for  what  they  themselves  did  not 
actually  commit?  On  the  contrary,  I  apprehend, 
that  by  adopting  any  publication,  they  become 
liable  in  law  for  the  consequences  of  that  pub- 
lication, as  much  as  if  they  were  themselves  the 
authors.  It  is  true  that  there  are  many  circum- 
stances to  be  considered,  either  by  me  in  moving 
judgment,  or  when  it  comes  to  be  determined  by 
the  court,  what  ought  to  be  the  nature  and  extent 
of  the  penalty.  The  consideration  of  the  degree 
of  guilt  incurred  by  the  particular  act,  might  then 
be  attended  to,  independent  of  the  law  of  the  case. 
Negligence,  omission,  inadvertence,  all  of  which, 
however,  constituted  a  degree  of  criminality,  might 
then,  perhaps,  properly  be  urged  as  circumstances 
of  extenuation.  Though  this  paper,  therefore, 
appeared  in  the  Morning  Chronicle,  not  as  the 


TRIAL  OF  MB.  PERRY  AND  MR.  LAMBERT.   209 

projected  act  of  the  defendants,  or  of  either  of 
them,  but  as  an  advertisement  signed  by  a  Mr. 
Eyre,  still  it  was  a  publication  for  which  the  defend- 
ants, in  their  capacity,  as  connected  with  this 
paper,  were  clearly  answerable. 

Another  circumstance  which  deserves  your  atten- 
tion is  the  time  at  which  this  advertisement  was 
brought  forward;  you  will  find  in  the  same  paper 
in  which  it  appeared  a  vast  number  of  advertise- 
ments from  various  associations  in  different  parts 
of  the  kingdom,  stating  that  there  had  lately  been 
many  seditious  writings  circulated  with  the  great- 
est industry,  and  from  the  worst  intentions,  which 
had  already  done  much  mischief,  and  expressing  a 
determination  to  take  every  method  in  future  to 
discountenance  and  suppress  such  publications. 
You  are  then  to  consider  how  far  these  advertise- 
ments might  operate  as  an  antidote  to  the  state- 
ment contained  in  this  publication ;  you  are  to  take 
into  review  the  whole  of  the  paper  and  advertise- 
ments, that  you  may  be  able  to  judge  fairly  of  the 
tendency  of  the  contents,  and  the  intention  of  the 
writers;  you  will  then  decide  whether  this  paper 
was  published  with  a  peaceable  temper,  and  from 
upright  intentions.  I  have  nothing  to  say  in  order 
to  exaggerate  the  case  or  influence  your  decision  ; 
I  have  never  had  occasion  to  do  so  in  any  instance; 
it  is  neither  my  duty  nor  my  wish  in  the  present, 
and  I  trust  that  no  man  in  my  situation  will  ever 
14  B 


210   SPEECH  OF  THE  ATTOENEY-GENEEAL  ON  THE 

do  so  upon  any  future  occasion.  All  cases  of 
which  the  law  takes  cognizance,  and  which  are  to 
be  determined  by  ascertaining  facts  and  applying 
the  law  to  them  are,  thank  God,  safe  in  the  hands 
of  a  jury,  the  best  guardians  of  our  rights.  Every 
thing  in  this  country  that  deserves  to  be  called,  a 
blessing  is  indisputably  deposited  in  their  hands, 
as  well  as  the  power  to  apply  a  remedy,  wherever 
their  interference  is  called  for  to  check  the  pro- 
gress of  an  evil.  It  is  from  our  blessings  being 
vested  in  their  hands  that  we  derive  our  security 
for  their  enjoyment,  and  our  confidence  in  their 
duration. 

It  is  for  you,  gentlemen  of  the  jury,  exercising 
your  privilege  in  its  full  extent,  from  the  facts 
which  I  shall  now  lay  before  you,  to  judge  of  the 
tendency  of  this  paper,  which  is  the  subject  of 
prosecution ;  from  the  bench  you  will  hear  laid 
down  from  the  most  respectable  authority  the  law 
which  you  are  to  apply  to  those  facts.  The  right 
of  every  man  to  represent  what  he  may  conceive 
to  be  an  abuse  or  grievance  existing  in  the  govern- 
ment of  the  country,  if  his  intentions  in  so  doing 
be  honest,  and  the  statement  made  upon  fair  and 
open  grounds,  can  never  for  a  moment  be  ques- 
tioned. I  shall  never  think  it  my  duty  to  prosecute 
any  person  for  writing,  printing,  and  publishing 
fair  and  conscientious  opinions  on  the  system  of 
the  government  and  constitution  of  this  country; 


TRIAL  OF  MR.  PERRY  AND  MR.  LAMBERT.      211 

nor  for  pointing  out  what  he  may  honestly  con- 
ceive to  be  grievances;  nor  for  proposing  legal 
means  of  redress.  But  was  this  the  case  with 
respect  to  the  present  publication?  Did  the  mode 
in  which  the  writers  exposed  what  they  considered 
as  the  abuses  of  the  constitution  indicate  a  peace- 
able temper,  or  honest  intentions,  and  a  desire 
only  to  obtain  redress  by  legal  and  constitutional 
means?  Did  not  this  paper,  on  the  contrary,  de- 
scribe the  whole  system  as  one  mass  of  abuse, 
grievances,  misery,  corruption,  and  despair,  not  so 
much  as  bringing  forward  one  alleviating  circum- 
stance, or  affording  even  a  ray  of  hope?  [Here 
Mr.  Attorney-General  read  some  extracts  from  the 
paper.] 

It  attacked  the  government  in  every  branch, 
in  its  legislature,  in  its  courts  of  justice,  which 
had  ever  been  deemed  sacred,  and,  in  short, 
represented  all  as  equally  corrupt  and  oppressive. 
There  was  no  circumstance  mentioned  fairly  that 
the  public  might  be  left  to  judge  freely  u|K)ii  their 
situation.  What  could  be  the  tendency  of  such  a 
representation,  but  to  excite  murmurs  and  inflame 
discontent,  without  effecting  one  good  purpose? 
If  a  man  wishes  to  state  honestly  what  he  con- 
ceives to  be  a  grievance,  let  him  do  it  candidly, 
and  propose  what  he  conceives  to  be  the  proper 
means  of  redress.  Let  him  not  take  one  side  of 
the  picture  only,  or  confine  himself  entirely  to  an 


212    SPEECH  OF  THE  ATTOKNEY-GENEKAL  OX  THE 

unfavorable  view  of  the  subject,  but  let  him  bal- 
ance the  good  with  the  evil,  let  him  enumerate  the 
blessings  as  well  as  the  inconveniences  of  the  sys- 
tem, and  while  he  points  out  abuses  and  errors,  not 
forget,  likewise,  to  enumerate  wise  and  salutary 
regulations;  such  conduct  only  can  answer  the 
purposes  of  candid  and  useful  discussion.  The 
contrary  conduct  adopted  in  this  paper  can  only 
have  a  tendency  to  unsettle  men's  minds,  and  stir 
up  sedition  and  anarchy  in  the  kingdom.  I  never 
will  dispute  the  right  of  any  man  fully  to  discuss 
topics  respecting  government,  and  honestly  to 
point  out  what  he  may  consider  as  a  proper 
remedy  of  grievances ;  every  man  has  a  right  so 
to  do,  if  the  discussion  be  fairly  and  temperately 
conducted ;  I  never  will  stand  against  such  a  per- 
son, even  though  I  should  differ  with  him  in  my 
opinion  of  the  grievance,  or  disapprove  of  the 
proposed  means  of  remedy.  But  when  men 
publish  on  these  points  they  must  not,  as  in 
the  present  instance,  do  it  unfairly  and  partially; 
they  must  not  paint  the  evil  in  the  most  glow- 
ing colors,  while  they  draw  a  veil  over  the 
good.  The  writers  of  this  paper  in  describing 
the  government  of  this  country  as  productive 
only  of  one  scene  of  misery,  must  have  acted 
contrary  to  their  own  knowledge  of  its  bless- 
ings, and  in  opposition  to  the  sense  which  they 
could  not  but  perceive  was  entertained  by  the 


TRIAL  OF  MR.  PERRY  AND  MR.  LAMBERT.      213 

people  at  large  of  the  happiness  of  their  con- 
dition. To  what  motives,  I  will  ask,  can  such  a 
representation  be  ascribed,  or  what  are  the  effects 
to  which  it  is  naturally  calculated  to  lead  ?  Are 
the  motives  such  only  as  can  be  set  down  to  fair 
and  honest  intention,  and  the  effects  only  such  as 
can  terminate  in  a  legal  and  peaceable  line  of  con- 
duct ?  We  are  to  consider,  too,  that  this  mode  of 
representation  is  adopted  with  respect  to  a  consti- 
titution  which  has  been  the  admiration  of  the  wisest 
and  best  men  in  all  ages,  who  have  thought  it 
barely  possible  that  a  constitution  should  exist  so 
nearly  approaching  to  a  model  of  perfection.  It 
is  a  constitution  under  which  a  greater  degree  of 
happiness  has  been  enjoyed  than  by  the  subjects 
of  any  government  whatever ;  and  the  sense  enter- 
tained of  its  blessings  depends  not  upon  the  vague 
results  of  theory,  but  the  solid  conviction  of  ex- 
perience. These  blessings  have,  in  a  great  measure, 
sprung  from  the  properly  regulated  freedom  of  the 
press;  a  freedom,  therefore  which  it  is  more  dan- 
gerous to  abuse ;  and  on  maintaining  that  freedom 
on  its  proper  principles  chiefly  depends  our  secu- 
rity for  the  enjoyment  of  those  blessings. 

That  this  country  has  enjoyed  a  greater  sum  of 
happiness  under  its  present  constitution  than  any 
other,  depends  not  merely  upon  the  testimony  of 
our  own  experience;  let  us  recur  to  the  evidence 
of  history,  we  shall  be  more  deeply  impressed  with 


214   SPEECH  OF  THE  ATTORNEY-GENERAL  ON  THE 

a  sense  of  our  present  felicity ;  let  us  take  a  view 
of  the  situation  of  the  subjects  of  the  other  Euro- 
pean governments,  we  shall  be  more  strongly  con- 
vinced of  the  superiority  of  our  own.  What,  then, 
do  the  writers  of  this  paper  mean,  when  they  say, 
"that  we  feel  too  much  not  to  believe  that  deep 
and  alarming  abuses  exist  in  the  British  govern- 
ment; yet  we  are  at  the  same  time  fully  sensible 
that  our  situation  is  comfortable  compared  with 
that  of  the  people  of  many  European  kingdoms ; 
and  that  as  the  times  are  in  some  degree  moderate, 
they  ought  to  be  free  from  riot  and  confusion  ? " 
Let  this  paragraph  be  taken  by  way  of  illustration. 
When  they  talk  of  our  situation  being  comfortable 
compared  with  many  European  kingdoms,  what 
need,  I  will  ask,  for  this  qualification?  Is  there 
any  European  government  that  in  point  of  real 
liberty  and  actual  comfort  can  be  compared  with 
the  British  constitution?  In  this  country  we  have 
the  fullest  security  for  the  possession  of  our  liberty 
and  the  enjoyment  of  our  property,  the  acquisition 
of  which  must  be  the  greatest  spur  to  every  honest 
and  laudable  exertion.  But  on  the  25th  of  Decem- 
ber, 1792,  while  this  country  was  actually  experi- 
encing the  blessings  resulting  from  its  admirable 
constitution,  the  principles  which  this  paper  seemed 
to  recommend  were  producing  very  different  effects 
in  a  neighboring  country.  The  effects  which  had 
there  been  produced  did  not  surely  hold  out  to 


TRIAL  OF  MR.  PERRY  A>'D  MR.  LAMBERT.      215 

British  subjects  any  encouragement  to  adopt  a  sys- 
tem of  experiment  and  innovation.  The  result  of 
this,  in  my  mind,  is,  that  no  man  should  be  at 
liberty,  without  a  specific  object,  to  state  truly  or 
.  falsely  what  appears  to  him  to  be  a  grievance 
merely  for  the  'purpose  of  exciting  a  spirit  of  gen- 
eral discontent,  which  I  will  venture  to  say  never 
can  be  called  into  action  without  endangering  the 
public  prosperity  and  happiness.  We  have  always 
been  in  the  habit  of  regarding  the  revolution  as 
the  greatest  blessing  that  ever  befell  this  country. 
But  how  do  the  writers  of  this  paper  reason  with 
respect  to  this  event?  They  enumerate  all  the 
abuses  which  they  pretend  have  since  crept  into 
the  constitution,  while  they  mention  none  of  the 
many  improvements  which  have  taken  place  since 
that  period.  Is  this,  I  will  ask,  a  fair  mode  of 
stating  the  question?  Besides,  they  show  them- 
selves ignorant  of  that  revolution,  by  talking  of 
the  annual  Parliaments  which  we  then  lost.  What 
was  the  end  of  all  this?  The  cause  of  truth  and 
justice  can  •  never  be  hurt  by  fair  and  temperate 
discussion;  if  you,  gentlemen  of  the  jury,  consider 
this  paper  as  coming  under  that  description,  you 
will  of  course  acquit  the  defendants.  Look  at  the 
beginning  and  conclusion  of  their  paper.  You  will 
find  that  they  set  out  with  declaring  that  they  are 
in  the  pursuit  of  truth  in  a  peaceable,  calm,  and 
unbiased  manner ;  and  from  an  opinion  that  the 


216    SPEECH  OF  THE  ATTORNEY-GENERAL  ON  THE 

cause  of  truth  and  of  justice  can  never  be  hurt  by 
temperate  and  honest  discussion,  that  they  claim 
the  right  to  associate  together  merely  for  the  com- 
munication of  thoughts,  the  formation  of  opinions, 
and  to  promote  the  general  happiness.  You  will 
find  that  they  conclude  thus  :  "We  hope  our  con- 
dition will  be  speedily  improved,  and  to  obtain  so 
desirable  a  good  is  the  object  of  our  present  asso- 
ciation ;  an  union  founded  on  principles  of  benevo- 
lence and  humanity ;  disclaiming  all  connection 
with  riots  and  disorder,  but  firm  in  our  purpose, 
and  warm  in  our  affections  for  liberty."  It  is  with 
you  to  decide  whether  you  think  the  general  tenor 
of  this  paper  consistent  with  the  principles  assumed 
at  the  beginning  and  asserted  at  the  end.  If  you 
shall  judge  that  it  contains  matter  very  inconsistent 
with  these  principles,  you  are  then  to  consider 
whether  in  a  case  like  this,  humble  language  ought 
to  ransom  strong  faults.  If  you  shall  be  clearly 
of  opinion  that  the  paper  has  a  different  tendency 
from  that  which  is  professed  in  the  outset  and  con- 
clusion, and  that  the  defendants  themselves  were 
aware  of  this  tendency,  you  are  then  bound  by 
your  oath,  and  by  the  law  of  the  country,  to  find 
the  defendants  guilty. 

Once  more,  as  to  the  contents  of  this  paper;  you 
will  find  that  the  taxes  are  loudly  complained  of, 
but  that  not  a  word  is  said  of  the  general  wealth 
and  prosperity  of  the  kingdom.  But  let  a  deduc- 


TRIAL  OF  MR.  PERRY  AND  MR.  LAMBERT.      217 

tion  be  made  of  the  national  taxes  from  the  amount 
of  the  national  wealth,  and  I  am  confident  that 
this  country  will  appear  in  a  higher  state  of  opu- 
lence and  prosperity  than  it  ever  was  at  any  former- 
period.  What  purpose  then  can  such  partial  and 
unfair  statements  answer,  except  to  inflame  the 
discontented  and  encourage  the  seditious  ?  What- 
ever I  have  said  of  the  tendency  of  this  paper,  I 
have  stated  only  as  my  own  opinion ;  it  does  not 
follow  that  the  society  at  Derby  might  not  view 
the  subject  in  a  very  different  light.  All  that  my 
duty  demands  is,  solemnly  to  declare  that  I  con- 
sidered this  prosecution,  though  not  originating 
with  myself,  as  a  proper  case  to  be  submitted  to 
the  consideration  of  a  jury.  You  have  now  heard 
from  me  almost  all  that  I  intended  to  say  at  pres- 
ent, or  thought  necessary  to  submit  to  to  you,  except 
what  may  fall  from  my  learned  friend  shall  require 
me  to  add  some  farther  observations  in  reply. 
You  will  hear  from  the  evidence  all  the  facts  which 
the  defendants  have  to  urge  in  their  own  justifica- 
tion, and  from  his  lordship  all  that  shall  apj>ear  to 
him  to  be  the  law  on  this  subject.  I  now  leave 
the  matter  to  your  decision.  If  you  think  the 
defendants  ought  to  be  acquitted,  I  shall  retire 
from  the  court  with  a  full  conviction,  not  inconsist- 
ent however  with  that  respect  which  I  owe  to 
your  decision,  that  in  bringing  this  matter  before 


218          SPEECH  OP  THE  ATTOKKEY-GENEEAL. 

you,  I  have  acted  according  to  tho  best  of  mj 
judgment. 

Mr.  Wood,  the  junior  counsel  on  the  part  of  the 
prosecution,  was  then  proceeding  to  call  witnesses, 
and  Mr.  Berry  was  called,  when  the  counsel  for  the 
defendants  said  he  was  instructed  to  save  the  court 
all  this  trouble,  as  the  defendants  were  anxious  to 
try  the  question  on  its  own  merits.  As  counsel 
for  the  defendants,  he  therefore  admitted  that  John 
Lambert,  charged  in  the  information  as  printer  of 
the  Morning  Chronicle,  was  in  fact  printer  of  that 
paper;  that  the  paper  was  purchased  at  the  print- 
ing-house; and  that  the  defendants  James  Perry 
and  James  Gray,  charged  in  the  information  as 
proprietors  of  the  same  paper,  were  in  fact  so.  If 
these  were  the  facts  meant  to  be  ascertained  by 
witnesses,  they  would  spare  the  court  unnecessary 
time  and  trouble,  by  admitting  them  fully  and  un- 
equivocally. • 

The  Attorney-General  said  these  were  all  the  facts 
they  meant  to  establish  by  proof;  he  thanked  his 
learned  friend  for  the  admission. 


SPEECH  OF    MR.    ERSKINE    FOR    THE 
DEFENDANTS. 


WITH  the  two  gentlemen  charged  in  the  infor- 
mation, as  proprietors  of  the  Morning  Chronicle,  I 
have  been  long  and  well  acquainted.  Of  Mr. 
John  Lambert,  who  conducts  the  mechanical  part 
of  the  printing  business,  I  have  no  personal  know- 
ledge; but  from  my  intimate  acquaintance  with 
the  other  two,  I  have  no  difficulty  in  saying,  that 
if  I  had  in  my  soul  the  slightest  idea  that  they 
were  guilty,  as  charged  in  the  information,  of  mali- 
cious and  wicked  designs  against  the  state,  I  should 
leave  the  task  of  defending  them  to  others.  Not 
that  I  conceive  I  have  a  right  to  refuse  my  profes- 
sional assistance  to  any  man  who  demands  it ;  but 
I  have  for  a  day  or  two  past  been  so  extremely 
indisposed,  that  I  feel  myself  scarcely  equal  to  the 
common  exertion  of  addressing  the  court ;  and  it 
is  only  from  the  fullest  confidence  in  the  innocence 
of  the  defendants  that  I  come  forward  for  a  very 
short  time  to  solicit  the  attention  of  the  jury. 
You,  gentlemen,  indeed,  are  the  sole  arbitrators  in 
this  cause,  and  to  you  it  belongs  to  decide  on  the 


220       SPEECH  OF  MR.  EESKINE  ON  THE  TRIAL 

whole  merits  of  the  question.     Mr.  Attorney-Gen- 
eral has  already  given  a  history  of  the  prosecution, 
which  was  originally  taken  up  by  his  predecessor, 
now  called  to  a  high  situation  in  his  profession.     I 
do  not  mean  by  anything  I  shall  say  to  impute 
unbecoming  conduct  to  either  of  those  respectable 
gentlemen  for  the  part  which  they  have  taken  in 
this  business ;  they  no  doubt  brought  it  forward, 
because  they  considered  it  as  a  proper  matter  for 
the  discussion  of  a  jury.     I  take  it  for  granted  that 
they  would  not  have  acted  so,  but  from  a  sense  of 
duty:    be  this  however  as  it  may,  the  weight  of 
their  characters  ought  to  have  no  influence  upon 
your  minds  against  the  defendants.     It  would  be 
dangerous  to  justice  indeed,  if,  because  a  charge 
was  brought  by  a  respectable  Attorney-General,  it 
were  to  be  received  as  an  evidence  of  guilt  which 
ought  at  all  to  bias  the  judgment  or  affect  the 
decision-  of  the  jury.     It  is  the  privilege  of  every 
British  subject  to  have  his  conduct  tried  by  his 
peers,  and  his  guilt  or  innocence  determined  by 
them.      In   this   case   Mr.   Attorney-General  has 
given  no  judgment;   he  has  taken  up  the  business 
merely  in  the  course  of  his  professional  duty.    The 
whole  of  the  matter  comes  before  you,  gentlemen 
of  the  jury,  who  of  course  will  reject  everything 
that  can  have  a  tendency  to  influence  your  decision 
independently  of  the  merits  of  the  cause;  you  will 
suffer  no  observation  that  may  fall  from  my  learn- 


OF  MB.   PERRY   AND    Mil.    LAMBERT.  221 

ed  friend,  or  from  myself,  to  interfere  with  your 
own  honest  and  unbiased  judgments.  You  are  to 
take  everything  that  relates  to  the  case  into  your 
own  consideration ;  you  are  to  consult  only  your 
own  judgments ;  you  are  to  decide,  as  you  are 
bound  by  your  duty,  according  to  your  own  con- 
sciences ;  and  your  right  to  decide  fully,  on  every 
point,  is  clearly  ascertained  by  the  law  of  libels. 
To  the  act  lately  passed  you  are  to  look  as  the 
only  rule  of  your  conduct  in  the  exercise  of  your 
functions. 

With  respect  to  the  interpretation  of  that  act,  I 
must  confess  that  my  learned  friend  and  I  materi- 
ally differ.  In  one  principle,  however,  we  entirely 
agree,  that  a  case  of  libel  is  to  be  tried  exactly  as 
any  other  criminal  case ;  this  point  indeed  he  has 
most  correctly  stated.  When  a  man  accused  of  a 
libel  is  brought  before  a  jury,  they  are  to  consider 
only  the  mind  and  intention  with  which  the  matter 
was  written,  and  accordingly  as  they  shall  find 
that,  they  are  to  form  their  decision  of  guilt  or  in- 
nocence. They  are  to  dismiss  every  other  consid- 
eration, and  allow  themselves  to  be  biased  by  no 
motive  of  party  or  political  convenience.  There  is 
this  essential  difference  between  criminal  and  civil 
cases :  in  criminal  cases,  the  jury  have  the  subject 
entirely  in  their  own  hands;  they  are  to  form 
their  judgment  upon  the  whole  of  it,  not  only  upon 
the  act  alleged  to  be  criminal,  but  the  motive  by 


222    SPEECH  OF  MR.  EESKINE  ON  THE  TRIAL 

which  it  was  influenced ;  the  intention  with  which 
it  was  committed ;  and  according  to  their  natural 
sense  of  the  transaction,  they  ought  to  find  a  man 
innocent  or  guilty ;  and  their  verdict  is  conclusive. 
Not  so  in  civil  cases:  in  these  the  jury  are  bound 
to  abide  in  their  decision  by  the  law  as  explained 
by  the  judge ;  they  are  not  at  liberty  to  follow 
their  own  opinions.  For  instance,  if  I  am  deprived 
of  any  part  of  my  property,  the  loss  of  my  prop- 
erty lays  a  foundation  for  an  action,  and  the  fact 
being  found,  the  jury  are  bound  to  find  a  verdict 
against  the  person  who  has  occasioned  my  loss, 
whatever  might  be  his  intentions.  Here  the  judge 
pronounces  law,  the  jury  only  find  the  fact.  The 
law  and  the  fact  are  as  distinct  and  separate,  as 
light  from  darkness ;  nor  can  any  verdict  of  a  jury 
pass  for  a  farthing  in  opposition  to  the  law,  as  laid 
down  by  the  judge,  since  the  courts  have  a  power 
to  set  such  a  verdict  aside.  But  in  criminal  cases, 
the  very  reverse  has  been  immemorially  establish- 
ed, the  law  and  the  fact  have  been  inseparably 
joined ;  the  intention  of  the  party  accused  is  the 
very  gist  of  the  case.  We  are  criminal  only  in 
the  eyes  of  God  and  man,  as  far  as  the  mind  and 
intention  in  committing  any  act  have  departed  from 
the  great  principles  of  rectitude,  by  which  we  are 
bound  as  moral  agents,  and  by  the  indispensible 
duties  of  civil  society.  It  is  not  the  act  itself,  but 
the  motive  from  which  it  proceeds,  that  constitutes 


OF   MR.   PERRY   AND   MR.    LAMBERT.  223 

guilt,  and  the  general  plea  therefore  in  all  criminal 
eases  is  not  guilty.  Such  is  the  answer  which  the 
justice  and  clemency  of  our  laws  have  put  into 
the  mouth  of  the  accused ;  leaving  him  the  right 
of  acquittal,  if  the  circumstances  of  the  transaction 
shall  be  found  to  exculpate  his  motives. 

The  criminality  of  a  person  under  the  libel  act, 
is  not  to  be  taken  as  an  inference  of  law  from  the 
fact,  as  Mr.  Attorney-General  has  stated  it;  but  if, 
as  one  of  the  authors  of  that  bill,  I  may  be  allowed 
to  interpret  its  meaning,  it  connects  and  involves 
the  law  and  the  fact  together,  and  obliges  the  jury 
to  find  in  this  crime,  as  in  all  others,  by  extrinsic 
as  well  as  intrinsic  means,  the  mind  and  intention 
with  which  the  fact  was  committed.  Nothing  can 
be  more  simple  than  the  doctrine.  It  goes  directly 
to  the  reason  of  the  thing.  Two  men,  for  instance, 
are  in  company  and  one  of  them  is  killed.  It  is 
not  an  inference  in  the  law  from  the  fact  of  the 
killing  that  the  person  was  guilty  of  murder;  it 
might  be  manslaughter,  justifiable  homicide, 
chance-medley,  or  it  might  be  murder;  the  fact 
does  not  infer  the  crime;  it  is  the  intention  with 
which  the  act  was  committed,  and  this  the  jury 
are  Ixmnd  to  discover  and  decide  upon  from  all 
the  accompanying  circumstances.  If  I  had  been 
wrong  in  holding  this  opinion,  all  my  opj>osition 
to  that  great  luminary  of  the  law  now  departed, 
but  who  will  always  live  in  public  memory,  was 


224        SPEECH  OF  MK.  EESKINE  ON  THE  TRIAL 

wrong  and  false;  I  revered  his  venerable  authority, 
I  admired  the  splendor  of  his  talents  which  illus- 
trated the  age  he  lived  in,  and  perhaps  ages  will 
pass  without  producing  his  rival.  I  still  opposed 
him,  in  the  meridian  of  his  fame,  on  the  doctrine 
that  the  law  of  libel  was  an  inference  from  the 
fact,  and  now  the  legislature  have  solemnly  con- 
firmed my  opinion,  that  the  law  and  fact  are  com- 
pounded together,  and  are  both  to  be  found  by  the 
jury.  I  could  not  have  held  up  my  head  in  this 
court,  nor  in  the  world,  if  it  had  been  adjudged 
otherwise ;  and  how  my  learned  friend  can  hold 
an  opinion  that  the  question  of  libel  is  to  be  tried 
precisely  like  all  other  criminal  cases,  and  yet  that 
criminal  intent  is  an  inference  from  law,  I  am 
utterly  at  a  loss  to  comprehend.  I  aver  that  you 
are  solemnly  set  in  judgment  on  the  hearts  of  the 
defendants,  in  the  publication  of  this  paper ;  you 
are  to  search  for  their  intention  by  every  means 
which  can  suggest  itself  to  you,  you  are  bound 
to  believe  in  your  consciences  that  they  are  guilty 
of  malicious  and  wicked  designs,  before  you  can 
pronounce  the  verdict  of  guilty.  It  is  not  because 
one  of  them  published  the  paper,  or  because  the 
others  are  proprietors  of  it,  but  because  they  were, 
or  were  not,  actuated  by  an  evil  mind,  and  had 
seditious  intentions,  that  you  must  find  them  guilty 
or  not  guilty.  Such  was  the  opinion  of  the  ven- 
erable Hale.  He  clearly  stated  that  such  should 


OF  MB.    PERRY   AXD   MR.    LAMBERT.  225 

be  the  charge  given  to  you  by  the  judge.  It  is 
his  sacred  function  to  deliver  to  you  an  opinion, 
but  not  to  force  it  upon  you  as  a  rule  for  yours. 
A  jury  will  always  listen  with  reverence  to  the  sol- 
emn opinion  of  the  judge,  but  they  are  bound  to 
examine  that  opinion  as  rigorously  as  that  of  an 
advocate  at  the  bar ;  they  cannot,  and  they  ought 
not,  to  forget  that  a  judge  is  human,  like  them- 
selves, and  of  course  not  exempt  from  the  infirmi- 
ties  of  man.  I  do  not  say  this  to  inspire  you  with 
any  jealousy  of  the  explanations  which  may  be 
given  you  by  the  noble  and  learned  judge,  who 
presides  here  with  so  much  wisdom,  integrity,  and 
candor,  and  whose  ability  in  explaining  the  law 
derives  lx)th  force  and  lustre  from  the  impartiality 
which  so  eminently  distinguishes  him  in  the  dis- 
charge of  the  duties  of  his  office. 

I  now  come  to  the  consideration  of  the  question: 
What  is  the  charge  against  the  defendants  ?  Let 
us  look  at  the  indictment,  which  sets  out  with 
referring  to  His  Majesty's  proclamation  which  had 
appeared  against  all  seditious  writings,  previous  to 
the  publication  of  the  libel.  I  will  not  here  talk 
of  the  propriety  of  that  proclamation ;  it  is  not  at 
all  my  business  here  to  enter  into  political  ques- 
tions; I  have  a  privilege  to  discuss  them  in 
another  place.  I  will  suppose  the  proclamation  to 
have  been  dictated  by  a  wise  and  prudent  policy  ; 
I  will  give  credit  to  it  as  a  measure  of  salutary  pre- 
15  B 


226    SPEECH  OF  ME.  EHSKINE  ON  THE  TEIAL 

caution  and  useful  tendency.  I  will  only  remind 
its  authors  when  it  was  issued.  It  was  issued  at  a 
period  the  most  extraordinary  and  eventful  which 
ever  occurred  in  the  annals  of  mankind;  at  a 
period  when  we  beheld  ancient  and  powerful  mon- 
archies overturned,  crumbled  into  dust,  and  repub- 
lics rising  upon  their  ruins ;  when  we  beheld 
despotic  monarchy  succeeded  by  the  despotism  of 
anarchy.  In  this  state  of  alarm,  confusion,  and 
devastation  in  other  countries,  the  defendants  are 
accused  by  this  information  of  wickedly,  mali- 
ciously, and  seditiously  endeavoring  to  discharge 
his  Majesty  from  the  hearts  of  his  subjects,  and  to 
alienate  the  people  of  England  from  what  their 
affections  were  riveted  on,  a  limited  and  well-regu- 
lated monarchy.  The  proclamation  appeared  pro- 
fessedly to  check  a  spirit  of  innovation,  which  had 
already  displayed  itself  by  such  alarming  effects  in 
a  neighboring  country,  and  which  it  was  feared, 
by  its  authors,  might  in  its  progress  become  fatal 
to  all  establishments.  How,  then,  can  this  paper 
be  deemed  seditious,  in  the  spirit  of  that  proclama- 
tion ?  It  was  not  surely  against  a  reform  in  our 
own  constitution,  which  this  paper  recommends, 
that  the  proclamation  was  pointed,  but  against 
those  who,  in  imitation  of  that  neighboring  country, 
wished  to  establish  a  republican  anarchy.  Can 
any  man  produce  a  single  expression  which,  in  the 
smallest  degree,  countenances  such  a  system?  How 


OF   MR.   PERRY   AND   MR.    LAMBERT.          2*27 

then  can  this  paper  l>e  urged  to  be  published  in 
defiance  of  His  Majesty's  authority,  or  to  have  a 
tendency  to  alienate  the  minds  of  his  subject*  from 
his  government?  A  proclamation  is  always  con- 
sidered as  the  act  of  ministers;  it  becomes  the  fair 
subject  of  discussion ;  nor  do  the  contents  of  this 
paper  at  all  breathe  a  spirit,  either  disrespectful 
to  His  Majesty's  person,  or  injurious  to  his  govern- 
ment. 

If  you,  gentlemen  of  the  jury,  can  think  that  the 
defendants  were  actuated  by  the  criminal  motive, 
not  of  wishing  to  reform  and  restore  the  beautiful 
fabric  of  our  constitution,  somewhat  impaired  by 
time,  but  to  destroy  and  subvert  it,  and  to  raise  on 
its  ruins  a  democracy  or  anarchy — an  idea  at  which 
the  mind  of  every  honest  man  must  shudder,  you 
will  find  them  guilty.  Nay,  if  any  man  knows  or 
believes  them  to  be  capaljle  of  entertaining  such  a 
wish,  or  will  say  he  ever  heard,  or  had  cause  to 
know,  that  one  sentence  intimating  a  desire  of  that 
nature  ever  fell  from  the  lips  of  any  one  of  them,  I 
will  give  them  up.  How  they  came  to  he  so 
charged  upon  the  record,  I  cannot  tell;  there  are  not 
among  His  Majesty's  subjects  men  better  disposed 
to  the  government  under  which  they  live  than  the 
defendants.  There  have  appeared  in  the  Morning 
Chronicle,  day  after  day,  advertisements  to  a  vast 
number,  warning  the  people  of  this  country  against 
seditious  persons,  and  against  the  effects  of  sedi- 


228        SPEECH  OF  MR.  ERSKINE  ON  THE  TRIAL 

tious  publications.  How  any  jury  can  be  brought 
to  think  the  defendants  are  what  they  are  stated 
to  be  upon  the  record,  I  know  not.  The  informa- 
tion states,  that  the  defendants  being  wicked,  mali- 
cious, seditious,  and  ill-disposed  persons,  did  wil- 
fully, wickedly,  maliciously,  and  seditiously,  pub- 
lish a  certain  malicious,  scandalous,  and  seditious 
libel  against  the  government  of  this  kingdom, 
against  its  peace  and  tranquility,  and  to  stir  up 
revolt,  and  to  encourage  his  Majesty's  subjects  to 
resistance  against  his  person  and  government. 
This  is  the  charge.  All  records  have  run  in  this 
form  from  the  most  remote  antiquity  in  this  coun- 
try, for  the  purpose  of  charging  the  defendant 
expressly  and  emphatically  with  an  evil  intention. 
So  we  charge  a  man  accused  of  treason ;  so  of  mur- 
der ;  so  of  all  the  worst  and  most  dangerous  crimes ; 
first,  we  begin  with  the  intention,  and  then  we 
state  the  overt  act  as  evidence  of  that  intention 
which  constitutes  the  crime.  Now  the  record 
charges  these  defendants  with  this  evil  intention, 
and  that,  in  order  to  give  effect  to  that  intention, 
they  did  publish  the  paper  now  before  the  jury. 
Such  is  the  charge.  Mr.  Attorney-General  has 
stated  to  you  in  his  opening,  that  if  it  shall  appear 
to  you  that  the  paper  in  question  was  not  written 
with  a  good  intention  by  its  authors,  then  the 
defendants  are  guilty  of  the  crime  imputed  to  them 
upon  the  record.  This  I  deny.  Your  lordship 


OF   MR.    PERRY   AXD   MR.    LAMBERT.          229 

will  recollect  the  case  of  the  King  and  Stockdale, 
and  I  shall  leave  to  the  jury  in  this,  as  your  lord- 
ship did  in  that  case,  the  question  of  the  intention 
of  the  party  from  the  context  of  the  whole  publi- 
cation, and  the  circumstances  attending  it;  and 
upon  this  I  will  maintain  that  it  is  not  sufficient 
that  it  should  appear  the  paper  was  written  with  a 
criminal  intention  by  its  author,  or  that  the  paper 
itself  was  criminal,  but  that  it  must  also  appear 
that  the  defendants  published  it  with  a  criminal 
intention.  Here,  as  in  every  other  case,  the  great 
maxim  of  the  law  is  to  be  recollected ;  actus  non 
facit  reum ;  the  mere  act,  taken  by  itself,  and 
separated  from  the  intention,  can  never  in  any 
instance  constitute  guilt.  There  is  no  evidence 
who  are  the  authors  of  this  paper  ;  the  Attorney- 
General  has  not  proved,  or  shown  in  any  way  that 
the  person  who  composed  the  paper  was  of  the 
description  which  the  record  states  the  defendants 
to  be.  If  the  design  of  the  writers  of  this  paper 
was  so  mischievous,  then  the  society  that  gave  it 
birth  were  seditious  and  evil-disposed  men.  What 
steps  have  been  taken  to  discover  and  hunt  out 
this  treason  ?  Have  the  society  been  prosecuted, 
or  any  of  its  members?  Has  the  writer  been 
sought  after  and  punished?  No  such  thing.  At 
Derby  all  is  quiet.  No  sedition  has  been  found 
lurking  there,  no  prosecution  has  been  instituted 
against  any  person  whatever  for  this  paper.  But 


230       SPEECH  OF  MR.  ERSKINE  ON  THE  TRIAL 

it  has  been  said,  the  paper  itself  will  prove  the 
seditious  design.  After  reading  it  over  and  over 
again,  and  paying  to  it  all  the  attention  possible,  I 
protest  I  cannot  discover  any  such  tendency;  on 
the  contrary,  I  can  very  well  conceive,  that  the 
man  who  wrote  it  might  honestly  be  induced  to 
write  and  circulate  it,  not  only  with  the  most 
unblemished  intentions,  but  from  motives  of  the 
purest  attachment  to  the  constitution  of  the  coun- 
try, and  the  most  ardent  wishes  for  the  happiness 
of  the  people. 

I  can  conceive  that  he  had  no  other  object  in 
pointing  out  the  defects  of  the  constitution  than  to 
show  the  necessity  of  a  reform  which  might  bring 
it  back  to  its  ancient  principles,  and  establish  it 
in  its  original  purity.  Animated  by  those  wishes, 
the  author  was  naturally  enough  led  to  advert  to 
what  was  passing  on  the  continent  of  Europe, 
and  to  consider  how  far  it  might  affect  the  inter- 
ests of  his  country  and  the  attainment  of  his 
favorite  object.  He  was  thence  led  to  conclude 
that  nothing  could  be  more  fatal  to  us,  or  more 
likely  to  increase  the  calamities  under  which  we 
have  already  suffered,  than  an  interference  in  those 
destructive  wars  which  were  ravaging  Europe, 
and  against  which  every  good  citizen,  as  well  as 
every  friend  to  humanity,  ought  to  enter  his  pro- 
test. This  may  be  gathered  from  the  conclusion 
of  the  fourth  section  of  the  paper :  "  We  are  cer- 


OF  MR.    PERRY   AND   MR.    LAMBERT.  2ol 

tain  our  present  heavy  burdens  are  owing,  in  a 
great  measure,  to  cruel  and  impolitic  wars,  and 
therefore,  we  will  do  all,  on  our  part,  as  peaceable 
citizens  who  have  the  good  of  the  community  at 
heart,  to  enlighten  each  other,  and  to  protest 
against  them."  Here  it  is  evident  that  the  author 
considers  the  state  of  the  representation  as  the 
cause  of  our  present  evils,  and  to  a  constitutional 
reform  of  Parliament  he  looks  as  their  remedy.  In 
the  conclusion  of  the  fifth  section  he  tints  explicitly 
states  his  sentiments: 

"  An  equal  and  uncorrupt  representation  would, 
we  are  persuaded,  save  us  from  heavy  expenses 
and  deliver  us  from  many  oppressions ;  we  will, 
therefore,  do  our  duty  to  procure  this  reform, 
which  appears  to  us  of  the  utmost  importance." 
How  is  it  proposed  to  procure  this  reform  ?  Why, 
"  by  constitutional  means ;  by  the  circulation  of 
truth  in  a  peaceable,  calm,  unbiased  manner." 
Can  this,  then  be  maliciously  intended?  Does  it 
fall  within  the  Attorney-General's  description  of 
sedition?  Is  it  fit  that  a  subject  of  this  country 
should  be  convicted  of  a  crime,  and  subjected  to 
heavy  punishment,  for  publishing  that  abuses  sub- 
sist in  the  government  of  this  country,  and 
arguing  from  thence  the  necessity  of  reform  ?  Mr. 
Attorney-General  seems  to  admit  that  a  man  may 
publish,  if  he  pleases,  the  evils  which  apjxmr  to 
him  to  subsist ;  but  he  qualifies  it  by  saying,  that 


SPEECH  OF  MR.  ERSKINE  ON  THE  TRIAL 

when  he  points  out  the  defects  he  should  point  out 
also  the  advantages  arising  from  our  representa- 
tion ;  that  he  should  state  the  blessings  we  enjoy 
from  the  mixed  nature  of  our  monarchy ;  that  if 
he  draws  the  gloomy  part,  he  should  present  us 
also  with  the  bright  side  of  the  picture,  in  order 
that  we  may  see  the  whole  together,  and  be  able 
to  compare  what  is  beautiful  with  what  is  de- 
formed in  the  structure  of  our  government.  I 
must  own  I  was  rather  surprised  to  hear  such  an 
argument  from  my  learned  friend;  I  can  hardly 
think  the  observation  fair,  or  by  any  means  wor- 
thy of  his  enlightened  understanding.  He  must 
know  that  when  a  zealous  man  pours  out  his 
thoughts,  intent  on  urging  a  particular  point,  he 
confines  himself  to  the  question  he  has  in  view ; 
he  directs  his  whole  attention  to  illustrate  and 
enforce  it,  and  does  not  think  it  necessary  to  run 
into  every  angle  and  corner  to  rake  together 
heterogeneous  materials,  which,  though  they  may 
be  connected  with  the  general  subject,  are  foreign 
to  his  particular  purpose. 

No  man,  if  he  felt  himself  goaded  by  the  excise 
laws,  could  be  expected,  in  his  petition  for  redress, 
to  state  all  the  advantages  which  arose  to  the  state 
out  of  the  other  branches  of  the  revenue.  If  this 
were  to  be  adopted,  as  a  rule,  a  man  could  not 
complain  of  a  grievance,  however  intolerable  he 
felt  it  to  himself,  without  also  stating  the  comforts 


OF   MR.    PERRY   AXD   MR.    LAMBERT.  233 

which  were  enjoyed  by  others.  Is  a  man  not  to 
be  permitted  to  seek  redress  from  any  part  of  the 
government  under  which  he  lives,  and  to  support 
which  lie  contributes  so  much,  unless,  in  enumer- 
ating his  particular  grievance,  he  enters  into  a 
general  panegyric  on  the  constitution?  Will  Mr. 
Attorney-General  say  to-day  that  this  is  the  law  of 
libel? 

This  very  point  has  been  most  admirably 
touched  upon  by  a  person  who  ranks  in  the  high- 
est class  of  genius,  and  whose  splendid  and 
powerful  talents,  once  exerted  in  the  cause  of  the 
j>eople,  may  possibly  bear  away  the  palm  in  the 
minds  of  posterity  from  the  most  illustrious  names 
of  Greece  and  Rome. 

Mr.  Burke,  in  his  Reflections  on  the  Affairs  of 
France,  at  the  commencement  of  the  revolution, 
most  justly  observes,  that  when  a  man  has  any 
particular  thing  in  view,  he  loses  sight  for  a  time 
even  of  his  own  sentiments  on  former  occasions; 
when  that  right  honorable  gentleman  was  asked  by 
those  who  had  so  often  listened  to  his  eloquence  in 
favor  of  the  people,  why  he  had  excluded  his  former 
favorite  topic  from  a  share  in  his  work,  and  made 
monarchy  the  sole  subject  of  his  vindication  and 
panegyric?  Whatever  may  belong  to  the  work 
itself,  the  answer  which  he  gave  upon  that  occasion 
must  be  admitted  to  be  sound  and  forcible.  When 
the  rights  of  the  people  appeared  to  him  to  be  in 


234   SPEECH  OF  ME.  EESKINE  ON  THE  TRIAL 

danger,  from  the  increasing  and  overpowering  in- 
fluence of  the  Crown,  he  brought  forward,  he  said, 
sentiments  favorable  to  such  rights.  But  when 
monarchy  was  in  danger,  monarchy  became  the 
object  of  his  protection;  the  rights  of  the  people 
were  nothing  to  him  then ;  they  did  not  form  the 
subject  of  his  book ;  his  object  was,  to  show  where 
the  danger  lay ;  and  the  beautiful  illustration  from 
Homer,  relative  to  the  death  of  Hector,  was  most 
applicable:  "When  his  body  was  placed  before 
the  aged  King,  his  other  sons  surrounded  him, 
anxious  to  afford  that  consolation  which  so  great 
a  calamity  required ;  the  unhappy  father,  as  if 
offended  with  their  tenderness,  flung  his  affection- 
ate offspring  from  him  like  a  pestilence.  Was  it 
that  the  inanimate  and  useless  corpse  was  dearer 
to  the  parent  than  the  living  children  ?  No.  But 
his  mind  was  so  absorbed,  so  buried  in  the  fate 
of  Hector,  that  he  was  for  a  while  incapable  of 
entertaining  any  other  impression."  So  said  the 
author  of  that  book ;  and  it  was  well  said ;  for 
when  a  man  writes  upon  a  particular  subject  he 
centres  his  mind  in  it ;  he  calls  forth  all  its  powers 
and  energy  to  the  discussion,  and  allows  nothing 
that  has  not  an  immediate  relation  to  the  object  he 
has  in  view  to  divide  his  feelings  or  distract  his 
attention.  But  if  the  observations  of  Mr.  Attorney- 
General  are  to  be  adopted  as  a  rule,  it  will  be  im- 
possible to  discuss  any  point  of  a  question  without 


OF  MB.   PERRY    AXD   MR,    LAMBERT.  23o 

entering  into  the  whole  merits ;  no  man  will  dare 
to  complain  of  any  abuse  of  the  constitution, 
without,  at  the  same  time,  enumerating  all  its  ex- 
cellencies, or  venture  to  touch  upon  a  topic  of 
grievance,  without  bringing  forward  a  recital  of 
blessings.  A  paragraph  would  be  swelled  to  a 
pamphlet,  and  an  essay  expanded  to  a  disserta- 
tion. 

But  it  seems  the  circumstances  of  the  times  ren- 
der any  opinion  in  favor  of  a  reform  of  Parliament, 
peculiarly  improper,  and  even  dangerous,  and  that 
the  recommendation  of  it,  as  the  only  remedy  for 
our  grievances,  must,  therefore,  in  the  present  mo- 
ment, be  ascribed  to  mischievous  intentions.  Were  I 
impressed  with  a  sense  of  that  corruption,  which  has, 
to  a  certain  degree,  impaired  and  defaced  the  fair 
fabric  of  our  constitution,  and  which,  if  not  stopped 
in  its  progress,  may  lead  to  its  decay  and  ruin ; 
were  I  to  address  you,  gentlemen  of  the  jury,  to 
petition  for  a  reform  of  Parliament,  I  would  address 
you  particularly  now,  as  the  season  most  fit  for  the 
purpose;  I  would  address  you  now,  because  we 
have  seen  in  other  countries  the  effect  of  suffering 
evils  to  prevail  so  long  in  a  government,  and  to 
increase  to  such  a  pitch,  that  it  became  impossible 
to  correct  them,  without  bringing  on  greater  evils 
than  those  which  it  was  the  first  object  of  the 
people  to  remove;  that  it  became  imixxssible  to 
remedy  abuses  without  opening  a  door  to  revolti- 


236        SPEECH  OF  ME.  EESKIIfE  ON  THE  TRIAL 

tion  and  anarchy.  There  are  many  diseases  which 
might  be  removed  by  gentle  medicines  in  their 
beginning,  and  even  corrected  by  timely  regimen, 
which,  when  neglected,  are  sure  to  bring  their  vic- 
tims to  the  grave.  A  slight  wound,  which  may  be 
certainly  cured  by  the  simplest  application  season- 
ably administered,  if  left  to  itself  will  end  in 
gangrene,  mortification,  and  death.  If  experience 
can  be  of  any  service  to  warn  men  of  their  danger, 
and  to  instruct  them  how  to  avoid  it,  this  is  the 
season  to  teach  men  the  best  sort  of  wisdom,  that 
wisdom  which  comes  in  time  to  be  useful.  I  have 
myself  no  hesitation  in  subscribing  to  all  the  great 
points  in  this  declaration  of  the  meeting  at  Derby. 
To  the  abuses  of  our  representative  system  they 
ascribe  our  unnecessary  war,  our  heavy  burdens, 
our  many  national  calamities.  And  at  what  period 
have  not  the  best  and  wisest  men  whom  this  coun- 
try ever  produced  adopted  the  same  sentiments 
and  employed  the  same  language  ?  The  illustrious 
Earl  of  Chatham  has  dignified  the  cause  by  the 
noblest  specimens  of  eloquence.  And  who  has  not 
read  the  beautiful  and  energetic  letter  of  Sir 
George  Saville,  to  his  constituents,  on  the  same 
subject — a  letter  which  is  so  much  in  point  that  I 
must  beg  leave  to  repeat  it  to  you. 

"I  return  to  you,  baffled  and  dispirited;  and  I 
am  sorry  the  truth  obliges  ine  to  add,  with  hardly 


OF   MR.   PERRY   AND   MR.    LAMBERT.  237 

a  ray  of  hope  of  seeing  any  change  in  the  miserable 
course  of  public  calamities. 

"On  this  melancholy  day  of  account,  in  render- 
ing up  to  you  my  trust,  I  deliver  to  you  your  share 
of  a  country  maimed  and  weakened ;  its  treasure 
lavished  and  misspent ;  its  honors  faded ;  and  its 
conduct  the  laughing-stock  of  Europe ;  our  nation 
in  a  manner  without  allies  or  friends,  except  such 
as  we  have  hired  to  destroy  our  fellow-subjects,  and 
to  ravage  a  country  in  which  we  once  claimed  an 
invaluable  share.  I  return  to  you  some  of  your 
principal  privileges  impeached  and  mangled.  And 
lastly,  I  leave  you,  as  I  conceive,  at  this  hour  and 
moment,  fully,  effectually,  and  absolutely,  under  the 
discretion  and  power  of  a  military  force,  which  is 
to  act  without  waiting  for  the  authority  of  the  civil 
magistrates. 

"Some  have  been  accused  of  exaggerating  the 
public  misfortunes,  nay,  of  having  endeavored  to 
help  forward  the  mischief,  that  they  might  after- 
wards raise  discontents.  I  am  willing  to  hope  that 
neither  my  temper,  nor  my  situation  in  life,  will  be 
thought  naturally  to  urge  me  to  promote  misery, 
discord,  or  confusion,  or  to  exult  in  the  subversion 
of  order,  or  in  the  ruin  of  property.  I  have  no 
reason  to  contemplate  with  pleasure  the  poverty 
of  our  country,  the  increase  of  our  debts  and  of  our 
taxes,  or  the  decay  of  our  commerce.  Trust  not, 


238   SPEECH  OF  MR.  ERSKINE  ON  THE  TRIAL 

however,  to  my  report;  reflect,  compare,  and  judge 
for  yourselves. 

"But,  under  all  these  disheartening  circumstan- 
ces, I  could  yet  entertain  a  cheerful  hope,  and 
undertake  again  the  commission  with  alacrity  as 
well  as  zeal,  if  I  could  see  any  effectual  steps  taken 
to  remove  the  original  cause  of  the  mischief.  Then 
would  there  be  a  hope. 

"  But,  till  the  purity  of  the  constituent  body,  and 
thereby  that  of  the  representative,  be  restored, 
there  is  none. 

"I  gladly  embrace  this  most  public  opportunity 
of  delivering  my  sentiments,  not  only  to  all  my 
constituents,  but  to  those  likewise  not  my  constitu- 
ents, whom  yet,  in  the  large  sense,  I  represent,  and 
am  faithfully  to  serve. 

"I  look  upon  restoring  election  and  representa- 
tion in  some  degree,  for  I  expect  no  miracles,  to 
their  original  purity,  to  be  that  without  which  all 
other  efforts  will  be  vain  and  ridiculous. 

"If  something  be  not  done,  you  may,  indeed, 
retain  the  outward  form  of  your  constitution,  but 
not  the  power  thereof." 

Such  were  the  words  of  that  great  and  good 
man,  surely  equally  forcible  with  any  of  those  em- 
ployed in  the  declaration  of  the  meeting  at  Derby, 
yet,  whoever  imputed  to  him  mischievous  inten- 
tions, or  suspected  him  of  sedition?  His  letter 
was  published  and  circulated,  not  only  among  his 


OF   MB.   PERRY   AND  MR.    LAMBERT.  239 

constituents  in  the  extensive  county  of  York,  but 
addressed  to  the  nation  at  large,  and  recommended 
by  him  to  their  attention.  Who  does  not  recollect 
the  conduct  which  had  been  adopted  on  the  same 
subject  by  the  very  men  now  nearest  his  Majesty, 
and  highest  in  his  counsels?  Had  not  the  same 
truths  published  in  this  declaration  been  rei>eatedly 
asserted  and  enforced  by  them  ?  Names  it  is  un- 
necessary to  mention ;  the  proceedings  to  which  I 
refer  are  sufficiently  known  ;  but  at  the  same  time, 
I  beg  leave  to  be  understood  to  convey  no  personal 
reflection  or  reproach.  I  am  the  more  anxious,  in 
this  instance,  to  guard  against  misrepresentation 
from  what  happened  to  me  upon  a  late  occasion, 
when,  in  consequence  of  my  argument  being  mis- 
understood, an  observation  was  put  into  my  mouth 
which  would  have  disgraced  the  lips  of  an  idiot. 
It  was  ascribed  to  me  to  have  said,  that  if  any  man 
had  written  a  libel,  and  could  prove  the  publica- 
tion of  the  same  libel  by  another  person  before,  he 
might  justify  himself  under  that  previous  publica- 
tion. I  cannot  conceive  how  so  egregious  a  blunder 
could  have  been  committed.  What  I  said  was, 
that  a  man  may  show  he  was  misled  by  another  in 
adopting  his  opinion,  and  may  use  that  circumstance 
as  evidence  of  the  innocence  of  his  intention  in  a 
publication  where  the  writing  is  not  defamatory  of 
an  individual  which  may  IKJ  brought  to  a  known 
standard  of  positive  law,  but  is  only  criminal  from 


240        SPEECH  OF  ME.  EESKINE  ON  THE  TEIAL 

a  supposed  tendency,  in  fact,  to  excite  sedition  and 
disorder.  He  may  then  repel  that  tendency,  by 
showing  the  jury,  who  alone  are  to  judge  of  it,  that 
the  same  writing  had  before  been  in  extensive  cir- 
culation, without  either  producing,  or  being  sup- 
posed to  produce,  sedition ;  and  he  may  also  repel 
the  inference  of  criminal  intention  by  showing  that 
the  wisest  and  most  virtuous  men  in  other  times 
had  maintained  the  same  doctrines,  not  merely  with 
impunity,  but  with  the  approbation  and  rewards 
of  the  public.  This  I  maintained  to  be  the  law  in 
the  case  of  Mr.  Holt,  the  printer,  and  this  upon 
every  suitable  occasion  I  shall  continue  to  main- 
tain. 

To  bring  home  the  application.  The  first  men 
in  the  present  government  have  held  and  published 
every  doctrine  contained  in  this  paper.  I  studi- 
ously avoid  all  allusion  which  may  seem  to  convey 
reproach  to  the  high  persons  to  whom  I  have  re- 
ferred, on  account  of  any  change  apparent  in  their 
conduct  and  sentiments,  because  I  conceive  it  to  be 
unnecessary  to  my  present  argument,  and  because 
I  have  a  privilege  to  discuss  their  conduct  in  an- 
other place,  where  they  are  themselves  present  to 
answer.  Besides,  a  man  has  a  right  to  his  senti- 
ments, and  he  has  a  right  to  change  them ;  on  that 
score  I  attack  no  man,  I  only  defend  my  clients. 
But  thus  far  I  am  entitled  to  say,  that  if  they  pub- 
lished sentiments  without  having  it  imputed  to 


OF   MB.   PERRY   AND   MR.    LAMBERT.  241 

them,  that  they  were  seditious,  evil-minded,  and 
wicked,  it  is  but  fair  and  reasonable  to  allege  that 
others,  in  bringing  forward  the  same  sentiments, 
may  be  equally  exempted  from  impure  motives.  I 
rej>eat,  that  every  man  has  a  right  to  publish  what 
he  thinks  upon  matters  of  public  concern,  to  point 
out  the  impolicy  of  wars,  or  the  weight  of  taxes,  to 
complain  of  grievances,  and  to  expose  abuses.  It 
is  a  right  which  has  ever  been  exercised,  and  which 
cannot  be  annihilated  without  at  the  same  time 
putting  an  end  to  all  freedom  of  discussion.  If 
we  talk  of  the  circumstances  of  the  times,  do  the 
present  afford  less  ground  for  remonstrance  and 
complaints  than  former  periods  ?  I  might  read 
you  many  extracts  from  the  writings  of  Mr.  Burke, 
who,  to  eloquence,  the  fame  of  modern  times  adds 
the  most  extensive  and  universal  acquaintance  with 
the  history  of  both  his  own  country  and  of  every 
other.  Mr.  Burke,  it  is  a  merit  I  never  can  forget, 
with  no  less  vehemence,  and  in  language  not  less 
pointed  and  forcible  than  we  find  in  this  declara- 
tion, exposes  the  same  abuses,  and  laments  the 
same  evils.  What  he  wrote  during  the  American 
war,  are  not  the  authors  of  this  declaration  justified 
in  writing  at  present  ?  To  the  defects  and  abuses 
of  our  system  of  representation  may  in  my  opinion 
be  ascribed  all  the  calamities  that  we  then  suffered, 
that  we  are  now  suffering,  or  are  still  apparently 
doomed  to  suffer.  The  evils  which  we  now  lament 
16  B 


242        SPEECH  OF  MR.  ERSKINE  ON  THE  TRIAL 

originated  from  the  same  source  with  those  which 
we  formerly  endured.  To  the  defects  of  our  repre- 
sentation we  owe  the  present  war,  as  to  them  also 
we  owe  that  disastrous  and  unprincipled  conflict 
which  ended  in  the  separation  of  Great  Britain 
from  her  colonies.  The  events  indeed  were  nearly 
connected.  That  mighty  republic  beyond  the  At- 
lantic gave  birth  to  the  new  republic  in  Europe, 
with  which  we  are  at  present  engaged  in  hostilities. 
From  all  the  consequences  which  we  have  already 
experienced,  which  we  now  suffer,  and  which  we 
have  yet  to  anticipate  in  reserve,  I  will  venture  to 
say,  that  a  reform  in  the  representation,  applied 
seasonably,  would  have  effectually  saved  the  coun- 
try. Is  it  likely,  while  this  fruitful  source  of 
misfortune  remains,  that  we  shall  not  continue  to 
suffer  ?  and  if  a  man  really  entertains  this  opinion, 
is  it  not  his  duty  to  publish  his  thoughts,  arid  to 
urge  the  adoption  of  a  fair  and  legal  remedy  ?  Is 
he  to  be  set  down  as  a  seditious  and  evil-minded 
man  because  he  speaks  the  truth  and  loves  his 
country  ?  Of  the  war  in  which  this  nation  is  en- 
gaged, I  will  here  say  nothing ;  it  will  soon  come 
to  be  discussed  in  another  place,  where  I  have  not 
failed  to  exercise  that  privilege,  which  I  there  pos- 
sess, to  deliver  my  opinion  of  its  dreadful  conse- 
quences. But  of  all  these  consequences,  there  is 
none  which  I  conceive  to  be  more  dreadful  and 
alarming  than  that  I  can  see  no  end  to  it ;  and  I 


OF   MR.    PERRY   AND   MR.    LAMBERT.          243 

believe  wiser  persons  than  myself  are  equally  at  a 
loss  to  predict  its  termination.  This  paper,  which 
BO  justly  reprobates  warn,  is  rumored  to  come  from 
the  pen  of  a  writer  whose  productions  justly  entitle 
him  to  rank  as  the  first  poet  of  the  age;  who  han 
enlarged  the  circle  of  the  pleasures  of  taste,  and 
embellished  with  new  flowers  the  regions  of  fancy. 
It  was  brought  forward  in  a  meeting,  in  a  legal 
and  peaceable  manner;  and  I  have  never  heard 
that  either  the  author,  or  any  of  the  members 
present  at  the  meeting,  have  been  prosecuted,  or 
that  the  smallest  censure  has  fallen  upon  their  con- 
duct. But  even  if  they  had  been  made  the  objects 
of  the  prosecution,  sanctioned  as  they  are  in  what 
they  have  written  by  every  principle  of  the  con- 
stitution, and  supported  in  their  conduct  by  its 
best  and  most  virtuous  defenders  in  all  times,  I 
should  have  had  little  difficulty  in  defending  them. 
How  much  less,  in  the  case  of  the  defendants,  who 
are  not  stated  to  be  the  authors  of  this  paj>er,  who 
only  published  it  in  the  course  of  their  business, 
and  who  published  it  under  such  peculiar  circum- 
stances as,  even  if  the  contents  could  have  admit- 
ted any  criminal  interpretation,  must  have  done 
away  on  their  part  all  imputation  of  any  criminal 
intention. 

They  have  in  a  manly  way  instructed  me,  how- 
ever, to  meet  the  question  upon  its  own  merits;  not 
because  they  could  not  have  proved  a  very  peculiar 


244        SPEECH  OF  MR.  ERSKINE  ON  THE  TRIAL 

alleviation,  but  because  they  have  always  pre- 
sented a  fair  and  unequivocal  responsibility  for  the 
conduct  of  their  paper.  Let  me  particularly  call 
your  attention  to  this  circumstance,  that  for  the 
number  of  years  during  which  the  defendants  have 
conducted  a  newspaper,  they  have  never  before,  in 
a  single  instance,  been  tried  for  any  offence,  either 
against  an  individual  or  against  the  state;  they 
have,  in  the  execution  of  their  task,  assiduously 
endeavored  to  enlighten  the  minds  of  their  fellow- 
subjects,  while  they  have  avoided  everything  that 
might  tend  to  endanger  their  morals.  They  have 
displayed  in  the  conduct  of  their  paper  a  degree 
of  learning,  taste,  and  genius,  superior  to  what  has 
distinguished  any  similar  undertaking.  They  have 
done  their  fellow-citizens  a  very  essential  service 
by  presenting  them  with  the  most  full  and  correct 
intelligence  of  what  has  been  passing  on  the 
political  theatre  of  Europe,  neither  sullied  by 
prejudice,  nor  disguised  by  misrepresentation. 
The  attention  which  they  have  paid  to  the 
important  occurrences  that  have  taken  place  in  a 
neighboring  country,  and  the  impartiality  with 
which  they  have  stated  them,  do  them  the  greatest 
credit.  I  trust  that  it  will  be  no  objection  to  them 
in  their  character  of  editors,  that  they  have  sought 
only  for  the  truth,  and,  wherever  they  have  found 
facts,  have  not  hesitated  to  bring  them  before  the 
public.  They  have  thus  enabled  their  readers  to 


OF  MR.    PERRY   AND   MR.    LAMBERT.          245 

jiulge  for  themselves,  and  have  furnished  them 
with  the  means  to  form  a  proper  judgment.  This 
is  the  true  value  of  a  free  press.  The  more  men 
are  enlightened,  the  better  will  they  be  qualified 
to  be  good  subjects  of  a  good  government;  and 
the  British  constitution,  as  it  has  nothing  to  fear 
from  comparison,  so  it  can  receive  no  support  from 
those  arts  which  disguise  or  suppress  the  truth  re- 
specting other  nations.  Wherever  the  defendants 
have  delivered  their  sentiments  upon  public  occur- 
rences, they  have  equally  avoided  being  misled  by 
the  credulity  of  alarm,  and  the  frenzy  of  innovation ; 
and  have  reprobated,  with  the  same  spirit  and 
boldness,  the  abuse  of  freedom  and  the  perversion 
of  power,  the  outrages  of  a  sanguinary  mob  and 
the  expressions  of  an  unprincipled  desj>ot.  What- 
ever may  have  been  their  political  partialities,  they 
are  such  as  cannot  but  do  them  the  highest  honor, 
and  their  partialities  have  been  the  result  of  honest 
conviction.  Though  uniformly  consistent  in  their 
friendship,  they  have  never  been  accused  by  those 
who  know  them  of  being  partisans  for  interest. 
Their  opinions  have  been  honest,  as  well  as  steady; 
and  through  life  they  have  maintained  and  assert- 
ed the  pure  principles  of  rational  freedom,  and  given 
the  most  strenuous  support  to  the  best  interests 
of  man.  They  have,  in  their  daily  task,  ever  pre- 
served reverence  for  private  character,  and  in  no 
instance  violated  the  decorums  of  life,  by  low 


246       SPEECH  OF  MR.  ERSKINE  ON  THE  TRIAL 

ribaldry  or  wanton  defamation.  Though  adverse 
in  their  sentiments  to  ministers  and  their  measures, 
they  have  confined  themselves  to  manly  discussion, 
and  fair  argument:  and  never  descended  to  inde- 
cent attack,  or  scurrilous  abuse. 

My  learned  friend  cannot  produce  a  single  in- 
stance in  the  course  of  seventeen  years,  the  term  of 
my  acquaintance  with  them,  in  which  they  have 
been  charged  in  any  court  with  public  libel,  or 
with  private  defamation;  and  I  challenge  the 
world  to  exhibit  a  single  instance  in  which  they 
have  made  their  journals  the  vehicles  of  slander, 
or  where  from  interest,  or  malice,  or  any  other  base 
motive,  they  have  published  a  single  paragraph 
to  disturb  the  happiness  of  private  life,  to  wound 
the  sensibility  of  innocence,  or  to  outrage  the 
decencies  of  well-regulated  society.  I  defy  the 
world  to  produce  a  single  instance.  Men  who 
have  so  conducted  themselves  are  entitled  to  pro- 
tection from  any  government,  but  certainly  they 
are  particularly  entitled  to  it  where  a  free  press  is 
part  of  the  system.  In  the  fair  and  liberal  man- 
agement of  their  paper,  fifteen  shillings  out  of 
every  guinea  which  they  receive  flow  directly 
into  the  public  exchequer;  and  besides  the  inces- 
sant toil,  and  the  unwearied  watching,  all  the 
expenses  by  which  this  great  gain  to  government 
is  produced,  are  borne  exclusively  by  them.  They 
essentially  contribute  therefore,  by  their  labors,  to. 


OF   ME.    PERRY   AND   MR.    LAMBERT.  247 

the  support  of  government  and  they  are  as  hon- 
estly and  fervently  attached  to  the  true  principles 
of  the  British  constitution,  to  the  Crown,  and  to 
the  mixed  system  of  our  government,  as  any  sub- 
ject of  His  Majesty ;  but  at  the  same  time  they  are 
ready  to  acknowledge,  that  they  ever  have  been 
advocates  for  a  temperate  and  seasonable  reform 
of  the  abuses  which  have  crept  into  our  system. 
Their  minds  are  to  be  taken  from  the  whole  view 
of  their  conduct.  It  is  a  curious,  and  I  will  ven- 
ture to  say  in  times  so  convulsed,  an  unexampled 
thing,  that  in  all  the  productions  of  my  friends, 
that  in  all  the  variety  of  their  daily  miscellany,  the 
Crown  officers  have  been  able  to  pick  out  but  one 
solitary  advertisement  from  all  that  they  have 
published,  on  which  to  bring  a  charge  of  sedition; 
and  of  this  advertisement,  if  they  thought  fit  to  go 
into  the  detail,  they  would  show  even  by  internal 
evidence,  that  it  was  inserted  at  a  very  busy 
moment,  without  revision  or  correction,  and  about 
the  very  time  that  this  advertisement  appeared, 
seven  hundred  declarations,  in  support  of  the  King's 
government,  appeared  in  the  same  paper,  which 
they  revised  and  corrected  for  publication.  You 
are  not  therefore  to  take  one  advertisement, 
inserted  in  their  paper,  as  a  criterion  of  their  prin- 
ciples, but  to  take  likewise  the  other  advertise- 
ments which  appeared  along  with  it.  Would  the 
readers  then  of  this  paper,  while  they  read  in  this 


248       SPEECH  OF  MR.  ERSKINE  ON  THE  TRIAL 

advertisement  a  recital  of  the  abuses  of  the  consti- 
tution, not  to  be  in  possession  of  a  sufficient  antidote 
from  the  enumeration  of  its  blessings  ?  While  the 
admirers  of  the  constitution  came  forward  with  an 
unqualified  panegyric  of  its  excellencies,  were  not 
the  friends  of  reform  justified  in  following  them 
with  a  fair  statement  of  grievances  ?  If  it  is 
alleged,  that  the  pecuniary  interest  which  the  pro- 
prietors have  in  a  newspaper,  ought  to  subject 
them  to  a  severe  responsibility  for  its  contents,  let 
it  be  recollected,  that  they  have  only  an  interest 
in  common  with  the  public.  I  again  call  upon  Mr. 
Attorney- General  to  state,  whether  the  fact  appears 
to  him  clearly  established,  that  the  writers  of  this 
paper  were  influenced  by  seditious  motives.  I  put 
it  to  you,  gentlemen  of  the  jury,  as  honest  men,  as 
candid  judges  of  the  conduct,  as  fair  interpreters 
of  the  sentiments  of  others,  whether  you  do  not, 
in  your  hearts  and  consciences  believe,  that  these 
men  felt  as  they  wrote — that  they  complained  of 
grievances  which  they  actually  experienced,  and 
expressed  sentiments  with  the  truth  of  which  they 
were  deeply  impressed.  If  you  grant  this,  if  you 
give  them  the  credit  of  honest  feelings  and  upright 
Intentions,  on  my  part  any  farther  defence  is  unneces- 
sary ;  we  are  already  in  possession  of  your  verdict ; 
you  have  already  pronounced  them  not  guilty  ;  for 
you  will  not  condemn  the  conduct  when  you  have 
acquitted  the  heart.  You  will  rather  desire  that 


OF   MR.    PERRY   AND   MR.    LAMBERT.  249 

British  justice  should  resemble  that  attribute  of 
Heaven  which  looks  not  to  the  outward  act,  but 
to  the  principle  from  which  it  proceeds,  to  the  in- 
tention bv  which  it  is  directed. 

•P 

In  summing  up  for  the  Crown,  I  would  never 
wish  to  carry  the  principles  of  liberty  farther  than 
Mr.  Attorney-General  has  done  when  he  asserted 
the  right  of  political  discussion,  and  desired  you 
only  to  look  to  the  temper  and  spirit  with  which 
such  discussion  was  made ;  when  he  asserted,  that 
it  was  right  to  expose  abuses,  to  complain  of  griev- 
ances, provided  always  that  it  were  done  with  an 
honest  and  fair  intention.  Upon  this  principle,  I 
;ij>]i«-:il  to  you  whether  this  advertisement  might 
not  be  written  with  a  bona  fide  intention,  and 
inserted  among  a  thousand  others,  without  any 
seditious  purpose,  or  desire  to  disturb  the  public 
peace.  * 

Undoubtedly  our  first  duty  is  the  love  of  our 
country ;  but  this  love  of  our  country  does  not  con- 
net  in  servile  attachment  and  blind  adulation  to 
authority.  It  was  not  so  that  our  ancestors  loved 
their  country ;  because  they  loved  it,  they  sought 
to  discover  the  defects  of  its  government ;  because 
they  loved  it,  they  endeavored  to  apply  the 
remedy.  They  regarded  the  constitution  not  as 
slaves,  with  a  constrained  and  involuntary  homage, 
but  they  loved  it  with  the  generous  and  enlight- 
ened ardor  of  free  men.  Their  attachment  was 


250  SPEECH   OF    ME.    EKSKINE. 

founded  upon  a  conviction  of  its  excellence,  and 
they  secured  its  permanence  by  freeing  it  from 
blemish.  Such  was  the  love  of  our  ancestors  for 
the  constitution,  and  their  posterity  surely  do  not 
become  criminal  by  emulating  their  example.  I 
appeal  to  you,  whether  the  abuses  stated  in  this 
paper  do  not  exist  in  the  constitution,  and  whether 
their  existence  has  not  been  admitted  by  all  par- 
ties, both  by  the  friends  and  enemies  of  reform. 
Both,  I  have  no  doubt,  are  honest  in  their  opinions, 
and  God  forbid  that  honest  opinion  in  either  party, 
should  ever  become  a  crime.  In  their  opinion,  the 
necessity  of  a  reform,  as  the  best  and  perhaps  the 
only  remedy  of  the  abuses  of  the  constitution,  the 
writers  of  this  paper  coincide  with  the  most  emi- 
nent and  enlightened  men.  On  this  ground  I  leave 
the  question,  secure  that  your  verdict  will  be 
agreeable  to  the  dictates  of  your  consciences,  and 
be  directed  by  a  sound  and  unbiased  judgment. 


THE     ATTORNEY- GENERAL'S    REPLY. 


There  are  some  propositions  which  my  learned 
friend,  Mr.  Erskine,  has  brought  forward  for  the 
defendants,  which  not  only  I  do  not  mean  to  dis- 
pute, as  an  officer  of  the  Crown,  carrying  on  this 
prosecution,  but  which  I  will  also  admit  to  their 
full  extent  Every  individual  is  certainly  in  a  con- 
siderable degree  interested  in  this  prosecution  ;  at 
the  same  time  I  must  observe,  that  I  should  have, 
in  my  own  opinion,  betrayed  my  duty  to  the 
Crown,  if  I  had  not  brought  this  subject  for  the 
consideration  of  a  jury.  Considering,  however, 
every  individual  as  under  my  protection,  I  think 
it  a  duty  which  I  owe  to  the  defendants,  to  acknowl- 
edge, that  in  no  one  instance  before  this  time  were 
they  brought  to  the  bar  of  any  court,  to  answer  for 
any  offence  either  against  government  or  a  private 
individual.  This  is  the  only  solitary  instance  in 
which  they  have  given  occasion  for  such  a  charge 
to  be  brought  against  them.  In  everything,  there- 
fore, that  I  know  of  the  defendants,  you  are  to  take 
them  as  men  standing  perfectly  free  from  any  im- 
putation but  the  present ;  and  I  will  also  say,  from 


252   REPLY  OF  THE  ATTORNEY-GENERAL  ON  THE 

all  I  have  ever  heard  of  the  defendants,  and  from 
all  I  have  ever  observed  of  their  morals  in  the 
conduct  of  their  paper,  I  honestly  and  candidly 
believe  them  to  be  men  incapable  of  wilfully  pub- 
lishing any  slander  on  individuals,  or  of  prostituting 
their  paper  to  defamation  or  indecency.  But  my 
learned  friend,  Mr.  Erskine,  has  stated  some  points 
which  my  duty  calls  upon  me  to  take  notice  of.  I 
bound  myself  by  the  contents  of  the  paper  only ;  I 
did  not  know  the  author  of  it.  I  did  not  know  any 
society  from  which  the  paper  purported  to  have 
originated.  It  is  said  to  be  the  production  of  a  man 
of  great  abilities;  I  do  not  know  that  he  is  the 
author ;  at  any  rate,  this  is  the  first  time  I  ever 
heard  of  that  circumstance.  There  is  one  fact  on 
which  we  are  all  agreed,  that  the  paper  itself  was 
dated  on  the  16th  of  July,  1792,  and  that  it  ap- 
peared in  the  Morning  Chronicle  on  the  25th  of 
December,  1792.  It  was  then  presented  to  the 
public  with  a  variety  of  other  advertisements, 
which  it  will  be  proper  for  you  to  peruse;  and 
for  that  purpose  you  will  carry  out  the  paper  with 
you,  if  you  find  it  necessary  to  withdraw,  in  order 
to  see  what  the  intent  of  the  defendants  was  in 
publishing  this  paper.  A  bill,  I  also  admit,  passed 
into  a  law,  the  last  session  of  Parliament,  upon  the 
subject  of  libels;  but  it  would  be  exceedingly  un- 
fortunate for  the  people  of  this  country  if  my 
learned  friend  and  myself  were  to  be  allowed  to 


TRIAL  OF  MR.  PERRY  AND  MR.  LAMBERT.   253 

give  evidence  in  a  court  of  justice  of  what  was  our 
intention  in  passing  that  bill.  The  bill  has  now 
become  a  solemn  act  of  the  legislature,  and  must 
speak  for  itself  by  its  contents;  but,  however,  it 
has,  in  my  opinion,  done  what  it  was  intended  to 
do.  It  refers  the  question  of  guilt  to  the  jury  in 
cases  of  lil>els,  precisely  as  in  every  other  criminal 
case.  My  learned  friend  has  insisted  that  criminal 
intention  is  matter  of  fact,  mixed  with  matter  of 
law.  I  agree  to  this  description;  but  then  the  law 
says,  that  such  and  such  facts  are  evidence  of  such 
and  such  intentions.  Treason,  for  instance,  de- 
pends upon  intention ;  but  such  and  such  acts  are 
evidence  of  a  criminal  intention  ;  and  if  the  jury 
entertain  any  doubts  upon  any  part  of  the  charge, 
his  lordship  will  only  do  his  duty  by  giving  them 
his  advice  and  direction,  which  will  be,  that  he  who 
does  such  and  such  things,  if  he  does  them  with  a 
criminal  intention,  is  amenable  to  the  law,  and  that 
such  and  such  acts  are  evidence  of  the  criminal 
intention;  and  then  the  jury  must  decide  upon 
that  evidence,  and  upon  that  advice,  whether  the 
defendant  was,  or  was  not  guilty.  So  says  Mr. 
Erskine,  and  so  I  say;  for  it  is  a  matter  of  plain 
common  sense,  coming  home  to  the  understanding 
of  every  man.  Mr.  Erskine  has  contended  that  the 
jury  must  not  draw  the  inference  of  criminal  inten- 
tion from  the  mere  fact  of  publishing  a  paper. 
Certainly  not;  but  they  may  draw  the  inference  of 


254  EEPLY  OF  THE  ATTOHNEY-GENERAL  ON  THE 

guilty  intention  if  they  discover  in  the  contents  of 
the  paper  a  wicked  and  malicious  spirit,  evidently 
pursuing  a  bad  object  by  unwarrantable  means. 
If  I  should  put  a  paper  into  the  hands  of  the  jury, 
desiring  them  to  put  my  learned  friend  to  death, 
would  not  that  prove  an  evil  intention  against  my 
friend's  life  ?  In  all  cases  of  publication  contain- 
ing anything  improper,  the  bad  intention  of  the 
person  publishing  was  clear,  unless  on  his  own  part, 
he  could  prove  the  contrary.  Such  has  always 
been  the  law  of  England  in  criminal  cases  of  this 
description.  Mr.  Erskine  has  desired  you  to  carry 
out  the  paper,  and  look  at  the  other  advertise- 
ments. Upon  this  I  am  bound  to  remark,  that 
there  is  not  one  of  them,  except  that  in  question, 
which  is  not  dated  in  the  month  of  December, 
while  this  advertisement  is  dated  on  the  16th  of 
July,  though  it  did  not  find  its  way  into  the  Morn- 
ing Chronicle  until  the  end  of  the  month  of  Decem- 
ber. How  that  came  to  happen  I  cannot  tell ;  it 
must  be  left  to  you  to  determine ;  but  it  docs 
appear  that  at  a  very  critical  moment  to  the  con- 
stitution of  this  country,  it  was  brought  out  to 
counteract  the  intention  and  effect  of  all  the  other 
declarations  in  support  of  government.  At  what 
time  the  defendants  received  the  paper  in  question, 
they  have  not  attempted  to  prove.  Why,  if  they 
received  it  in  July,  they  did  not  insert  it,  they  have 
not  said.  They  have  brought  no  exculpatory  evi- 


TRIAL  OF  MR.  PERRY  AND  MR.  LAMBERT.      255 

dence  whatever  to  account  for  the  delay.  It  was 
urged  that  the  defendants  only  published  it  in  the 
way  of  business,  as  an  advertisement,  and  therefore 
they  could  not  be  said  to  be  guilty.  If  I  should 
be  brought  to  admit  this  as  a  sufficient  answer,  and 
never  institute  a  prosecution  where  such  was  the 
caae,  I  -i.-.n!-!,  in  -"  doing,  deliver  the  jury,  im-l 
every  man  in  this  country,  to  the  mercy  of  any 
newspaper  printer  in  this  kingdom,  to  be  traduced 
and  vilified,  just  as  the  malice  of  any  man,  who 
chose  to  pay  for  vending  his  own  scandal,  should 
dictate;  I  therefore  entreat  you  to  bring  the  caae 
home  to  your  own  bosoms,  and  to  act  for  the  public 
as  in  such  an  instance  you  would  wish  to  act  for 
yourselves.  I  must  likewise  say,  that  if  you  are  to 
look  at  the  intention  of  the  defendants  in  the  other 
matter  contained  in  the  same  paper,  you  will  find 
various  strong,  and  even  intemperate  things. — 
Among  others,  you  will  find  the  following,  which, 
if  it  did  not  show  a  seditious,  did  not  breathe  a 
very  temperate  spirit:  "Well  might  Mr.  Fox  call 
this  the  most  momentous  crisis  that  he  ever  heard 
of  in  the  history  of  England ;  for  we  will  venture 
to  say  there  is  not  any  one  species  of  tyranny  which 
might  not,  in  the  present  day,  be  tried  with  impu- 
nity ;  no  sort  of  oppression  which  would  not  find, 
not  merely  advocates,  but  supporters ;  and  never, 
never  in  the  most  agitated  moments  of  our  history, 


256  KEPLY  OF  THE  ATTORNEY-GENERAL  ON  THE 

were  men  so  universally   tame,   or   so  despicably 
feeble." 

This  paragraph  is  no  advertisement;  it  came 
from  no  society;  and  will,  I  take  it  for  granted, 
not  be  disavowed  by  the  defendants. 

Upon  the  question  of  a  reform  of  Parliament,  I 
remain  of  the  same  opinion  which  I  have  always 
entertained;  and  whatever  may  have  been  said  or 
thought  by  Mr.  Fox,  Mr.  Pitt,  the  Duke  of  Eich- 
mond,  the  late  Earl  of  Chatham,  or  the  late  Sir 
George  Saville,  or  by  any  man,  let  his  authority 
have  been  ever  so  great,  never  while  I  live,  will  I 
consent  to  vote  for  a,  reform  in  Parliament,  until  I 
see  something  specific  to  be  done,  and  can  be  very 
sure  that  the  good  to  be  gained  will  make  it  worth 
while  to  hazard  the  experiment. 

In  this  way  of  thinking  I  am  the  more  confirmed 
from  the  circumstance,  that  of  all  the  wise  and 
excellent  men  who  have  at  different  times  agitated 
the  question  of  reform,  none  of  them  have  ever 
been  able  to  agree  upon  one  specific  plan.  And 
I  declare,  that  I  would  rather  suffer  death  than 
consent  to  open  a  door  for  such  alterations  in 
the  government  of  this  country  as  chance  or  bad 
men  might  direct;  or  even  good  men,  misled  by 
bad,  might,  in  the  first  instance,  be  inclined  to 
adopt.  I  shudder,  indeed,  when  I  reflect  on  what 
have  been  the  consequences  of  innovation  in  a 
neighboring  country.  The  many  excellent  men 


TRIAL  OF  MR,  PERRY  AND  MR,  LAMBERT.      257 

who  there  began  to  try  experiments  on  govern- 
ment, confining  their  views  within  certain  limits  of 
moderation,  and  having  no  other  object  than  the 
public  good,  little  did  they  foresee  in  their  outset 
the  excesses  and  crimes  which  would  follow  in  the 
progress  of  that  revolution,  of  which  they  were  the 
authors,  and  of  which  they  were  themselves  des- 
tined to  become  the  victims.  They  are  now  lying 
in  the  sepulchres  of  the  dead,  and  the  tombs  of 
mortality ;  and  most  willingly,  I  am  persuaded, 
would  they  have  consigned  themselves  to  their 
fate,  if,  by  their  death,  they  could  have  saved  their 
unhappy  country  from  the  horrors  and  miseries  of 
that  dreadful  anarchy  into  which  it  has  fallen. 
Never,  with  such  examples  before  my  eyes,  will  I 
stake  the  blessings  which  we  possess  under  the 
government  of  this  country,  upon  the  precarious 
consequences  of  innovation ;  nor  consent  to  any 
alteration,  of  which,  whatever  may  be  stated  as  its 
object,  the  precise  effects  can  never  be  ascertained. 
Indeed,  I  must  think  that  my  friend  Mr.  Erskine, 
in  his  propositions  with  respect  to  a  reform,  allows 
himself  to  talk  like  a  child,  and  does  not  sufficiently 
consult  that  excellent  judgment  which  he  displays 
on  every  other  occasion.  But  let  me  entreat 
him  to  reflect  on  the  situation  in  which  both  of 
us  are  now  placed,  and  which,  if  twenty  years 
ago,  any  person  told  me  I  should  have  attained,  I 
should  have  regarded  it  as  madness.  If  we,  by 
17  B 


258    REPLY  OF  THE  ATTORNEY-GENERAL  ON  THE 

our  industry  (my  friend,  indeed,  with  the  advan- 
tage of  his  superior  talents),  have  acquired  a 
degree  of  opulence  and  distinction  which  we  could 
not  reasonably  have  looked  for,  let  us  be  thankful 
to  that  government  to  whose  protection  and  favor 
we  are,  in  a  great  measure,  indebted  for  our  success ; 
and  do  not  let  us,  by  any  rash  attempt  upon  our 
constitution,  put  it  out  of  the  power  of  our  children 
to  rise  to  similar  situations,  or  deprive  them  of 
those  blessings  which  we  have  ourselves  so  signally 
experienced.  Do  not  let  us  pull  down  a  fabric, 
which  has  been  the  admiration  of  ages,  and  which 
it  may  be  impossible  to  erect  anew.  Let  me  again 
call  your  attention  to  the  paper  upon  which  this 
prosecution  is  founded.  [Here  Mr.  Attorney-Gen- 
eral read  several  extracts  from  the  declaration.] 

After  what  you  have  heard,  I  think  it  is  impossible 
to  doubt  of  the  libellous  tendency  of  this  publica- 
tion. It  states,  as  I  have  already  said,  the  whole 
of  our  government  as  one  mass  of  grievances  and 
abuse;  while  it  does  not  so  much  as  enumerate  a 
single  blessing  or  advantage  with  which  it  is  at- 
tended. It  represents  it  as  corrupt  and  oppressive 
in  every  branch,  as  polluted  in  its  very  source,  its 
legislature,  and  its  courts  of  justice.  What,  I  ask, 
can  be  supposed  to  be  the  spirit  with  which  such 
representations  are  dictated,  and  the  consequences 
to  which  they  are  calculated  to  lead?  Can  you 
admit  such  representations  to  have  been  brought 


TRIAL  OF  MR.  PERRY  AND  MR,  LAMBERT.      259 

forward  bona  fide,  and  from  no  other  motive,   than 
the  wish  to  procure  a  peaceable  and  legal   redress 
of  grievances  ?     If  you  can  admit  this,  you  will  of 
course  find  the  defendants  not  guilty.     But  if  it 
shall  api>ear  otherwise,  let  me  remind  you  of  t'.iat 
duty  which  you   owe   to  the  public,  with    whose 
safety  and  protection  you  are  entrusted,  and  whose 
interests  you  are  to  consult  in  the  verdict  which 
you  shall  give.     Let  me  remind  you  of  the  neces- 
sity of  checking,  in    proper    time,    the    spirit  of 
sedition,  and  frustrating  the  designs  of  the  factious, 
before  it  be  too  late.    Let  me  conclude  with  ol>serv- 
ing,  that  I  have  brought  forward  this  prosecution 
as  a  servant  of  the  public,  influenced  by  my  own 
judgment,  and  acting  from  what  I  conceived  to  be 
my  duty.     I  had  no  other  view  than  the  public 
advantage  ;  and  should  you  be  of  opinion  that  the 
defendants  ought  to  be  declared  not  guilty,  I  trust 
you  will  acquit  me  of  any  intention  of  acting  either 
impertinently  with  respect  to  you,  or  oppressively 
to  the  defendants.     I  shall  then  retire,   conscious 
of  having  done  my  duty  in  having  stated  my  opin- 
ion, though  inclined,  in  deference  to  your  verdict, 
to  suppose  myself  mistaken. 


LORD  KENYON'S  CHARGE  TO  THE 
JURY. 


GENTLEMEN  OF  THE  JURY  :  There  are  no  cases 
which  call  forth  greater  exertions  of  great  abilities, 
than  those  that  relate  to  political  libels.  And  as 
this  cause,  both  on  the  part  of  the  prosecution,  and 
also  on  behalf  of  the  defendants,  has  been  so 
amply  discussed  that  the  subject  is  exhausted,  I 
should  have  satisfied  myself  with  what  has  been 
already  said,  if  there  was  not  a  duty  lying  on  me 
which,  by  the  law  of  the  land,  it  is  incumbent  on 
me  to  discharge. 

The  liberty  of  the  press  has  always  been,  and 
has  justly  been  a  favorite  topic  with  Englishmen. 
They  have  looked  at  it  with  jealousy  whenever  it 
has  been  invaded ;  and  though  a  licenser  was  put 
over  the  press,  and  was  suffered  to  exist  some 
years  after  the  coming  of  William,  and  after  the 
revolution,  yet  the  reluctant  spirit  of  English 
liberty  called  for  a  repeal  of  that  law ;  and  from 
that  time  to  this,  it  has  not  been  shackled  and 
limited  more  than  it  ought  to  be. 

Gentlemen,  it  is  placed  as  the  sentinel  to  alarm 


TRIAL  OF  MR.  PERRY  AND  MR.  LAMBERT.      2(31 

us  when  any  attempt  is  made  on  our  liberties;  and 
we  ought  to  be  watchful,  and  to  take  care  that  the 
sentinel  is  not  abased  and  converted  into  a  traitor. 
It  can  only  be  protected  by  being  kept  within  due 
limits,  and  by  our  doing  those  things  which  we 
ought,  and  watching  over  the  liberties  of  the 
people;  but  the  instant  it  degenerates  into  licen- 
tiousness, we  ought  not  to  suffer  it  to  exist  without 
punishment  It  is,  therefore,  for  the  protection 
of  liberty  that  its  licentiousness  is  brought  to  pun- 
ishment. 

A  great  deal  has  been  said  respecting  a  reform 
of  Parliament,  that  is,  an  alteration  of  Parliament. 
If  I  were  called  upon  to  decide  on  that  point,  be- 
fore I  would  pull  down  the  fabric,  or  presume  to 
disturb  one  stone  in  the  structure,  I  would  consider 
what  those  benefits  are  which  it  seeks,  and 
whether  they,  to  the  extent  to  which  they  are 
asked,  ought  to  be  hazarded;  whether  any 
imaginary  reform  ought  to  be  adopted,  however 
virtuous  the  breast,  or  however  able  the  head, 
that  might  attempt  such  a  reform.  I  should  be 
a  little  afraid  that  when  the  water  was  let  out 
nobody  could  tell  how  to  stop  it;  if  the  lion  was 
once  let  into  the  house,  who  would  be  found  to 
shut  the  door?  I  should  first  feel  the  greater 
benefits  of  a  reform,  and  should  not  hazard  our 
present  blessings  out  of  a  capricious  humor  to 
bring  about  such  a  measure. 


262     LORD  KENYON'S  SUMMING  UP  ON  THE 

The  merits  or  demerits  of  the  late  law  respecting 
libels,  I  shall  not.  enter  into.  It  is  enough  for  me 
that  it  is  the  law  of  the  land,  which,  by  my  oath 
I  am  bound  to  give  effect  to,  and  it  commands  me 
to  state  to  juries  what  my  opinion  is  respecting 
this  or  any  other  paper  brought  into  judgment 
before  them.  In  forming  my  opinion  on  this 
paper,  or  on  any  other,  before  I  arrive  at  a  positive 
decision  on  that  point,  I  would  look  about,  and  see 
what  the  times  were  when  the  publication  took 
place.  I  would  look  at  all  the  attendant  circum- 
stances, and,  with  that  assistance,  I  would  set 
about  to  expound  the  paper.  The  observation 
which  this  cause  calls  for,  form  a  part  of  the  noto- 
rious history  of  the  country.  How  long  this  paper 
was  penned  before  it  appeared  in  this  newspaper, 
I  know  not ;  the  25th  of  December  is  the  day 
when  it  was  published,  and  it  is  dated  the  16th  of 
July,  1792. 

Gentlemen,  you  will  recollect  the  appearance  of 
public  affairs,  and  the  feelings  of  every  mind  in  the 
country,  at  the  time  that  Parliament  met,  and  for 
sometime  after,  in  December  last.  I  do  not  know 
whether  I  color  the  picture  right,  when  I  say  very 
gloomy  sensations  had  pervaded  the  whole  country. 
It  is  for  you  to  say  whether  at  that  time  there  were 
not  emissaries  from  a  neighboring  country  making 
their  way,  as  well  as  they  could,  in  this  country. 
It  is  for  you  to  say,  looking  at  the  great  anarchy 


TRIAL  OF  MB.  PERRY  AND  MR.  LAMBERT.       2G3 

and  confusion  of  France,  whether  they  did  not  wish 
to  agitate  the  minds  of  all  orders  of  men,  in  all 
countries,  and  to  plant  their  tree  of  liberty  in  every 
kingdom  in  Europe.  It  is  for  you  to  say  whether 
their  intention  was  not  to  eradicate  every  kind  of 

w 

government  that  was  not  sympathetic  with  their 
own.  I  am  bound,  gentlemen,  to  declare  my 
opinion  on  this  paper,  and  to  do  so  I  must  take 
within  my  consideration  all  the  circumstances  of 
the  time  when  it  apj>eared.  I  have  no  hesitation 
in  saying,  then,  that  they  were  most  gloomy.  The 
country  was  torn  to  its  centre  by  emissaries  from 
France.  It  was  a  notorious  fact — every  man 
knows  it — I  could  neither  open  my  eyes  nor  my 
ears  without  seeing  and  hearing  them.  Weighing 
thus  all  the  circumstances,  that,  though  dated  in 
July,  it  was  not  published  till  December,  when 
those  emissaries  were  spreading  their  horrid  doc- 
trines ;  and  believing  there  was  a  great  gloominess 
in  the  country,  and  I  must  shut  my  eyes  and  ears 
if  I  did  not  believe  that  there  was ;  believing  also, 
that  there  were  emissaries  from  France,  wishing  to 
spread  the  maxims  prevalent  in  that  country,  in 
this;  believing  that  the  minds  of  the  people  of 
this  country  were  much  agitated  by  these  political 
topics,  of  which  the  mass  of  the  population  never 
can  forma  true  judgment;  and  reading  this  paper, 
which  appears  to  be  calculated  to  put  the  people 
in  a  state  of  discontent  with  everything  done  in 


264  LOED  KENYON'S  SUMMING  UP  ON  THE 

this  country ;  I  am  bound  on  my  oath  to  answer, 
that  I  think  this  paper  was  published  with  a 
wicked,  malicious  intent,  to  vilify  the  government, 
and  to  make  the  people  discontented  with  the  consti- 
tution under  which  they  live.  That  is  the  mat- 
ter charged  in  the  information ;  that  it  was  done 
with  a  view  to  vilify  the  constitution,  the  laws, 
and  the  government  of  this  country,  and  to  infuse 
into  the  minds  of  his  Majesty's  subjects  a  belief 
that  they  were  oppressed,  and  on  this  ground  I 
consider  it  as  a  gross  and  seditious  libel.  This  is 
the  question  put  to  you  to  decide. 

It  is  admitted  the  defendants  are  the  proprietors 
of  the  paper  in  which  this  address  was  published. 

There  is  one  topic  more.  It  is  said  they  were 
not  the  authors  of  the  address,  and  that  it  got  inad- 
vertently into  their  paper.  It  never  was  doubted, 
and  I  suppose  it  never  will  be  doubted,  that  the 
publishers  of  a  newspaper  are  answerable  for  the 
contents  of  it.  Those  who  think  most  favorably 
for  the  defendants,  will  go  no  farther  than  to  say, 
that  the  parties  publishing  ought  to  give  an 
account  how  they  published  it,  and  if  there  is  any- 
thing baneful  in  the  contents,  to  show  how  it  came 
to  them,  and  whether  it  was  inserted  inadvertently 
or  otherwise.  If  anything  of  that  sort  had  been 
offered,  I  certainly  should  have  received  it  as  evi- 
dence. But  nothing  of  the  kind  has  been  offered, 
and  the  defendants  stand  as  the  proprietors  and 


TRIAL  OF  MR.  PERRY  AND  MR,  LAMBERT.      265 

publishers  of  the  paper,  without  the  slightest  evi- 
dence in  alleviation  being  offered  in  their  favor. 

It  is  not  for  human  judgment  to  dive  into  the 
heart  of  man,  to  know  whether  his  intentions  are 
good  or  evil.  We  must  draw  our  conclusions  with 
regard  to  his  intentions  from  overt  acts  ;  and  if  an 
evil  tendency  is  apparent  on  the  face  of  any  par- 
ticular paj)er,  it  can  only  be  traced  by  human  judg- 
ment prima  facie  to  a  bad  intention,  unless  evi- 
dence is  brought  to  prove  its  innocence.  This 
cause  is  destitute  of  any  proof  of  that  kind. 

It  is  said  that  this  paper  contains  other  adver- 
tisements and  paragraphs ;  and  therefore  from  the 
good  moral  tendency  of  the  whole,  for  aught  I 
know  to  the  contrary,  you  are  to  extract  an  opinion 
that  the  meaning  was  not  bad.  I  cannot  say  that 
the  traveling  into  advertisements  which  have  noth- 
ing to  do  with  this  business,  is  exactly  the  errand 
you  are  to  go  upon.  From  this  paper  itself,  and 
all  the  contents  of  it,  you  will  extract  the  meaning  ; 
and  if  upon  the  whole  you  should  think  the  ten- 
dency of  it  is  good,  in  my  opinion  the  parties  ought 
to  be  acquitted.  But  it  is  not  sufficient  that  there 
should  be  in  this  paper  detached  good  morals  in 
part  of  it,  unless  they  give  an  explanation  of  the 
rest  The  charge  will  be  done  away,  if  those  parts 
which  the  Attorney-General  has  stated  are  so  ex- 
plained as  to  leave  nothing  excepted. 

There  may  be  morality  and  virtue  in  this  paper, 


266  FINDING   OF   THE   JURY. 

and  yet,  apparently,  latet  anguis  in  herba.  There 
may  be  much  that  is  good  in  it,  and  yet  there  may 
be  much  to  censure.  I  have  told  you  my  opinion. 
Gentlemen,  the  constitution  has  intrusted  it  to  you, 
and  it  is  your  duty  to  have  only  one  point  in  view. 
Without  fear,  favor,  or  affection,  without  regard 
either  to  the  prosecutor  or  the  defendants,  look  at 
the  question  before  you,  and  on  that  decide  on  the 
guilt  or  innocence  of  the  defendants. 


The  jury  then  withdrew,  at  two  o'clock  in  the  afternoon. 
The  learned  judge,  understanding  that  they  were  divided 
and  likely  to  be  some  time  in  making  up  their  minds,  re- 
tired from  the  bench,  and  directed  Mr.  Lowten  to  take  the 
verdict.  At  seven  in  the  evening,  they  gave  notice  that  they 
had  agreed  on  a  special  verdict,  which  Mr.  Lowten  could  not 
receive ;  they  went  up  in  coaches,  each  attended  by  an  offi- 
cer, to  Lord  Kenyon's  house ;  the  special  verdict  was, 
"  guilty  of  publishing,  but  with  no  malicious  intent." 

This  verdict  Lord  Kenyon  refused  to  receive,  insisting  that 
it  was  no  verdict  at  all. 

The  jury  then  withdrew,  and  after  sitting  in  discussion  till 
within  a  few  minutes  of  five  in  the  morning,  they  found  a 
general  verdict  of  "  Not  guilty." 


Trial  of  Mr.  THOMAS  WALKER,  of  Manchester,  Mer- 
chant, and  six  other  persons,  indicted  for  a  conspiracy  to 
overthrow  the  Constitution  and  Government  of  Great  Bri- 
tain, and  to  aid  and  assist  the  French,  being  the  King's 
enemies,  in  ease  they  should  invade  England.  Tried  at 
I  •••  .  befon  Mr.  .1  ••  •  ]{•-.  •  •  •  •  ./•.''/•  -  .  /' 

the  Court  of  Common  Pleas,  and  a   Special  Jury,  on    the 
2nd  of  April,  1794. 


SUBJECT. 

It  has  not  seemed  necessary  for  the  lull  understanding  of 
this  interesting  and  extraordinary  case,  to  print  the  evidence 
given  upon  the  trial ;  because,  to  the  honor  of  Lord  Ellen- 
borough,  then  Mr.  Law,  who  conducted  the  prosecution  for 
the  Crown,  after  hearing  positive  contradiction  of  the  only 
witness  in  support  of  it,  by  several  unexceptionable  persons, 
he  expressed  himself  as  follows  : 

14 1  know  the  characters  of  several  of  the  gentlemen  who 
have  been  examined  ;  particularly  of  Mr.  Jones.  I  cannot 
expect  one  witness  alone,  unconfirmed,  to  stand  against  the 
testimony  of  all  these  witnesses ;  I  ought  not  to  desire  it." 
To  which  just  declaration,  which  ended  the  trial,  Mr.  Justice 
Heath  said,  "  You  act  very  properly,  Mr.  Law." 

The  jury  found  Mr.  Walker  "  Not  guilty  ;"  and  the  wit- 
ness  was  immediately  committed,  indicted  for  perjury,  and 
convicted  at  the  same  assizes. 

Mr.  Law's  speech  to  the  jury  is  first  given,  which  contains 
the  whole  *ase,  afterwards  proved  by  the  witness,  who  was 
disbelieved.  The  speech  of  Mr.  Erskine  in  reply,  states  the 
evidence  afterwards  given  to  contradict  him. 


SPEECH    OF    ME.    LAW. 


The  indictment  having  been  opened  by  Mr. 
James,  Mr.  Law  addressed  the  jury  as  follows: 

GENTLEMEN  OF  THE  JURY:  The  indictment 
which  has  been  read  to  you,  imputes  to  the  defend- 
ants a  species  of  treasonable  misdemeanor,  second 
only  in  degree,  and  inferior  only  in  malignity,  to 
the  crime  of  high  treason  itself.  It  imputes  to 
them  a  conspiracy  for  the  purpose  of  adhering  with 
effect  to  the  King's  enemies,  in  case  the  calamity  of 
foreign  invasion  or  of  internal  and  domestic  tumult 
should  afford  them  the  desired  opportunity  of  so 
doing — a  conspiracy  for  the  purpose  of  employing 
against  our  country  those  arms  which  should  be 
devoted  to  its  defence,  and  of  overthrowing  a  con- 
stitution, the  work  of  long-continued  wisdom  and 
virtue  in  the  ages  that  have  gone  before  us,  and 
which,  I  trust,  the  sober-minded  virtue  and  wisdom 
of  the  present  age  will  transmit  unimpaired  to  ages 
that  are  yet  to  succeed  us.  It  imputes  to  them  a 
conspiracy,  not  indeed  levelled  at  the  person  and 
life  of  our  sovereign,  but  at  that  constitution  at  the 
head  of  which  he  is  placed,  and  at  that  system  of 


TRIAL  OF   THOMAS    WALKER.  2C9 

beneficial  laws  which  it  in  his  pride  and  his  duty 
to  administer;  at  that  constitution  which  makes 
us  what  we  are,  a  great,  free,  and,  I  trust,  with  a 
few  exceptions  only,  a  happy  and  united  ]>eoplo. 
Gentlemen,  a  conspiracy  formed  for  these  purposes, 
and  to  be  effected  eventually  by  means  of  arms;  a 
conspiracy  which  had  either  for  its  immediate  aim 
or  probable  consequence,  the  introduction  into  this 
country,  upon  the  model  of  France,  of  all  the 
miseries  that  disgrace  and  desolate  that  unhappy 
land,  is  the  crime  for  which  the  defendants  stand 
arraigned  before  you  this  day ;  and  it  is  for  you  to 
say,  in  the  first  instance,  and  for  my  lord  hereafter, 
what  shall  be  the  result  and  effect  in  respect  to 
persons,  against  whom  a  conspiracy  of  such  enor- 
mous magnitude  and  mischief  shall  be  substantiated 
in  evidence. 

Gentlemen,  whatever  subjects  of  political  differ- 
ence may  subsist  amongst  us,  I  trust  we  are  in 
general  agreed  in  venerating  the  great  principles 
of  our  constitution,  and  in  wishing  to  sustain  and 
render  them  permanent.  Whatever  toleration  and 
indulgence  we  may  be  willing  to  allow  to  differ- 
ences in  matters  of  less  importance,  upon  some 
subjects  we  can  allow  none;  to  the  friends  of 
France,  leagued  in  unity  of  counsel,  inclination,  and 
interests  with  France,  against  the  arms  and  inter- 
ests of  our  country  however  tolerant  in  other 
respects,  we  can  afford  no  grains  of  allowance,  no 


270  SPEECH   OF    MR.    LAW   ON   THE 

sentiments  of  indulgence,  or  toleration  whatsoever ; 
to  do  so,  at  a  time  when  those  arms  and  counsels 
are  directed  against  our  political  and  civil,  against 
not  our  national  only,  but  natural  existence  (and 
at  such  a  period  you  will  find  that  the  very  conspi- 
racy now  under  consideration  was  formed),  would 
be  equally  inconsistent  with  every  rule  of  law  and 
every  principle  of  self-preservation  :  it  would  be  at 
once  to  authorize  every  description  of  mischievous 
persons  to  carry  their  destructive  principles  into 
immediate  and  fatal  effect ;  in  other  words,  it  would 
be  to  sign  the  doom  and  downfall  of  that  constitu- 
tion which  protects  us  all. 

I  am  sure,  therefore,  that  for  the  crime,  such  as 
I  have  represented  it  to  be,  my  learned  friend  will 
not,  in  the  exercise  of  his  own  good  sense,  choose 
to  offer  any  defence  or  apology ;  but  he  will  en- 
deavor to  make  the  evidence  I  shall  lay  before 
you  appear  in  another  point  of  view :  he  will  en- 
deavor to  conceal  and  soften  much  of  that  malignity 
which  I  impute,  and  I  think  justly,  to  the  inten- 
tions and  actings  of  these  defendants. 

It  was  about  the  close  of  the  year  1792,  that  the 
French  nation  thought  fit  to  hold  out  to  all  the 
nations  on  the  globe,  or  rather,  I  should  say,  to  the 
discontented  subjects  of  all  those  nations,  an  en- 
couragement to  confederate  and  combine  together, 
for  the  purpose  of  subverting  all  regular  established 
authority  amongst  them,  by  a  decree  of  the  19th 


TRIAL   OF  THOMAS   WALKER.  271 

of  November,  1792,  which  I  consider  as  the 
immediate  source  and  origin  of  this  and  other 
mischievous  societies.  That  nation,  in  convention, 
pledged  to  the  discontented  inhabitants  of  other 
countries,  it*  protection  and  assistance,  in  case  they 
should  be  disposed  to  innovate  and  change  the 
form  of  government  under  which  they  had  hitherto 
lived.  Under  the  influence  of  this  fostering  en- 
couragement, and  meaning,  I  suppose,  to  avail 
themselves  of  the  protection  and  assistance  thus 
held  out  to  them,  this  and  other  dangerous  societies 
sprang  up  and  spread  themselves  within  the  bosom 
of  this  realm. 

Gentlemen,  it  was  about  the  period  I  mentioned, 
or  shortly  after,  I  mean  in  the  month  of  Decem- 
ber, which  followed  close  upon  the  promulgation 
of  this  detestable  decree,  that  the  society  on  which 
I  am  about  to  comment,  ten  members  of  which  are 
now  presented  in  trial  before  you,  was  formed.* 
The  vigilance  of  those  to  whom  the  administration 
of  justice  and  the  immediate  care  of  the  police  of 
the  country  is  primarily  entrusted,  had  already  pre- 
vented or  dispersed  every  numerous  assembly  of 
persons  which  resorted  to  public-housed  for  such 
purposes;  it  therefore  became  necessary  for  per- 
sons thus  disposed,  to  assemble  themselves,  if  at 

*The  Manchester  Constitutional  Society  wns  instituted  in  October, 
1790;  the  Reformation  Society,  in  March,  ll'J'2  :  the  Patriotic  Society, 
in  April,  1792. 


272  SPEECH   OF   ME.    LAW   ON   THE 

all,  within  the  walls  of  some  private  mansion.  The 
president  and  head  of  this  society,  Mr.  Thomas 
Walker,  raised  to  that  bad  eminence  by  a  species 
of  merit  which  will  not  meet  with  much  favor  or 
encouragement  here,  opened  his  doors  to  receive  a 
society  of  this  sort  at  Manchester,  miscalled  the 
Reformation  Society;  the  name  may,  in  some 
senses,  indeed,  import  and  be  understood  to  mean 
a  society  formed  for  the  purpose  of  beneficial 
reform ;  but  what  the  real  purposes  of  this  society 
were,  you  will  presently  learn,  from  their  declared 
sentiments  and  criminal  actings.  He  opened  his 
doors,  then,  to  receive  this  society ;  they  assem- 
bled, night  after  night,  in  numbers,  to  an  amount 
which  you  will  hear  from  the  witnesses  ;  sometimes, 
I  believe,  the  extended  number  of  such  assemblies 
amounting  to  more  than  a  hundred  persons.  There 
were  three  considerable  rooms  allotted  for  their 
reception.  In  the  lower  part  of  the  house,  where 
they  were  first  admitted,  they  sat  upon  business  of 
less  moment,  and  requiring  the  presence  of  smaller 
numbers ;  in  the  upper  part,  they  assembled  in 
greater  multitudes,  and  read,  as  in  a  school,  and  as 
it  were  to  fashion  and  perfect  themselves  in  every- 
thing that  is  seditious  and  mischievous,  those  writ- 
ings which  have  been  already  reprobated  by  other 
juries,  sitting  in  this  and  other  places,  by  the  courts 
of  law,  and  in  effect,  by  the  united  voice  of  both 
Houses  of  Parliament.  They  read,  amongst  other 


TRIAL   OF  THOMAS   WALKER.  273 

works,  particularly  the  works  of  an  author  wluse 
name  is  in  the  mouth  of  everybody  in  this  country; 
I  mean  the  works  of  Thomas  Paine ;  an  author, 
who,  in  the  gloom  of  a  French  prison,  is  now  con- 
templating the  full  effects,  and  experiencing  all  the 
miseries  of  that  disorganizing  system  of  which  he 
is,  in  some  respect,  the  parent,  certainly,  the  great 
advocate  and  promoter. 

The  works  of  this  author,  and  many  other  works 
of  a  similar  tendency,  were  read  aloud  hy  a  per- 
son of  the  name  of  Jackson,  who  exercised  upon 
those  occasions  the  mischievous  function  of  reader 
to  this  society.  Others  of  the  defendants  had  dif- 
ferent functions  assigned  to  them ;  some  were 
busied  in  training  them  to  the  use  of  arms,  for  the 
purj>ose,  avowedly,  in  case  there  should  be  either 
a  landing  of  the  French,  with  whom  we  were  then, 
I  think,  actually  at  war  or  about  to  be  immediately 
at  war  ;  or  in  case  there  should  take  place  a  revolt 
in  the  kingdoms  of  Ireland  or  Scotland,  to  minister 
to  their  assistance,  either  to  such  invasion  or  to  such 
revolt.  That  they  met  for  such  purj>oses  is  not 
only  clear  from  the  writings  that  were  read  aloud 
to  them,  and  the  conversations  that  were  held,  but 
by  the  purposes  which  were  expressly  declared  and 
avowed  by  those  who  may  be  considered  as  the 
mouth-pieces  and  organs  of  the  society  upon  these 
occasions. 

The  first  time,  I  think,  that  the  witness  Dunn, 
18  B 


274  SPEECH   OF   MR.    LAW   ON   THE 

whom  I  shall  presently  produce  to  you,  saw  the 
defendant,  Mr.  Walker,  Mr.  Walker  declared  to 
him,  "that  he  hoped  they  should  soon  overthrow 
the  constitution."  The  witness  I  have  alluded  to 
was  introduced  to  the  society  by  two  persons,  I 
think  of  the  names  of  M'Callum  and  Smith,  and 
who,  if  I  am  not  misinformed,  have  since  taken 
their  flight  from  this  country  to  America.  The 
first  night  he  was  there,  he  did  not  see  their  presi- 
dent, Mr.  Walker,  but  on  the  second  night  that  he 
went  there,  Mr.  Walker  met  him  as  he  entered  the 
door,  and  observing,  from  his  dialect,  that  he  was 
a  native  of  Ireland,  Mr.  Walker  inquired  of  him 
how  the  volunteers  went  on,  and  said,  with  a  smile 
as  he  passed  him  in  his  way  up-stairs  to  the  rest 
of  the  associated  members,  "we  shall  overthrow 
the  constitution  by-and-by."  The  witness  was 
then  ushered  into  this  room,  where  he  saw  assem- 
bled nearly  to  the  number  of  a  hundred  or  a  hun- 
dred and  fifty  persons.  The  room  was,  I  under- 
stand, a  large  warehouse  at  the  top  of  the  house ; 
there  were  about  fourteen  or  fifteen  persons  then 
actually  under  arms,  and  some  of  those  whose 
names  are  to  be  found  in  this  record  were  em- 
ployed in  teaching  others  the  military  exercise.  It 
would  be  endless,  as  well  as  useless,  to  relate  to  you 
the  whole  of  what  passed  at  these  several  meetings. 
Upon  some  occasions,  Mr.  Walker  would  talk  in 
the  most  contumelious  and  abominable  language 


TRIAL  OF  THOMAS   WALKER.  275 

of  the  sacred  person  of  our  Sovereign.  In  one  in- 
stance, when  talking  of  monarchy  he  said,  "Damn 
kings !  what  have  we  to  do  with  them,  what  are 
they  to  us?"  and,  to  show  the  contempt  in  which 
he  held  the  lives  of  all  kings,  and  particularly  that 
of  our  own  Sovereign,  taking  a  piece  of  paper  in 
his  hand,  and  tearing  it,  lie  said,  "If  I  had  the 
King  here,  I  would  cut  off'  his  head  as  readily  as  I 
tear  this  paper." 

Upon  other  occasions,  others  of  the  members, 
and  particularly  a  person  of  the  name  of  Paul,  who 
I  believe  is  now  in  court,  held  similar  language ; 
damning  the  King;  reviling  and  defaming  him  in 
the  execution  of  his  high  office ;  representing  the 
whole  system  of  our  public  government  as  a  system 
of  plunder  and  rapacity;  representing,  particularly, 
the  administration  of  a  neighboring  kingdom  by  a 
Lord-Lieutenant,  as  a  scheme  and  device  merely 
invented  to  corrupt  the  people,  and  to  enrich  and 
aggrandize  the  individual  to  whose  care  the  gov- 
ernment of  that  kingdom  is  more  immediately 
delegated ;  in  short,  arraigning  every  part  of  our 
public  ecomomy  as  directly  productive  of  mis-gov- 
ernment and  oppression.  The  King  himself  was 
sometimes  more  particularly  pointed  at  by  Mr. 
Walker.  He  related  of  him  a  strange,  incredible, 
and  foolish  fable,  which  I  never  heard  suggested 
from  any  other  quarter:  "That  his  Majesty  was 
possessed  of  seventeen  millions  of  money  in  some 


276  SPEECH    OF    ME.    LAW    ON    THE 

bank  or  other  at  Vienna,  which  he  kept  locked  up 
there,  and  would  not  bestow  a  single  penny  of  it 
to  relieve  the  distresses  and  indigence  of  any  part 
of  his  own  subjects."  Many  other  assertions  of 
this  sort  were  made,  and  conversations  of  a  similar 
import  held,  between  Mr.  Walker  and  the  persons 
thus  assembled. 

About  three  months  after  the  formation,  as  far 
as  I  can  collect  it,  of  this  society,  that  is,  about  the 
month  of  March,  1793,  a  person  of  the  name  of 
Yorke — Yorke  of  Derby,  I  think  he  is  called  — 
arrived  at  Manchester,  with  all  the  apparatus  of  a 
kind  of  apostolic  mission,  addressed  to  the  various 
assemblies  of  seditious  persons  in  that  quarter  of 
the  kingdom.  He  harangued  them  upon  such 
topics  as  were  most  likely  to  interest  and  inflame 
them ;  he  explained  to  them  the  object  of  the  journey 
he  was  then  making  through  the  country ;  he  said 
he  was  come  to  visit  all  the  combined  societies,  in 
order  to  learn  the  numbers  they  could  respectively 
muster,  in  case  there  should  be  an  invasion  by  the 
French,  which  was  then  talked  of,  and  is  yet,  I  am 
afraid,  talked  of  but  upon  too  much  foundation  ;  to 
know,  in  short,  what  number  they  could  add  to  the 
arms  of  France,  in  case  these  arms  should  be  hos- 
tilely  directed  against  Great  Britain  itself.  He 
stated  that  the  French  were  about  to  land  in  this 
country,  to  the  number  of  forty  or  fifty  thousand 
men,  and  that  he  was  collecting,  in  the  different 


TRIAL  OF  THOMAS  WALKER.        277 

societies,  the  names  of  such  persons  as  could  be  best 
depended  upon,  in  order  to  ascertain  what  number 
in  the  whole  could  actually  be  brought  into  the 
field  upon  such  an  emergency. 

When  this  person  was  present,  there  seems  to 
have  been  a  sort  of  holiday  and  festival  of  sedi- 
tion ;  each  member  strove  with  his  fellow  which 
should  express  sentiments  the  most  injurious  and 
hostile  to  the  peace  and  happiness  of  their  country. 
Dunn,  the  witness  I  have  already  alluded  to,  will 
speak  to  the  actual  communication  of  all  the  sev- 
eral persons  who  are  defendants  upon  this  record 
in  most  of  the  mischievous  councils  which  were 
then  held,  and  which  are  the  subject  of  this  prose- 
cution. They  met  during  a  considerable  length  of 
time  he  attended,  (and  here  you  will  not  be  called 
upon  to  give  credit  to  a  loose  and  casual  recollec- 
tion of  a  few  random  expressions,  uttered  upon 
one  or  two  accidental  occasions,  capable  of  an 
innocent  or  doubtful  construction ) ;  but  he  attended, 
I  believe,  at  nearly  forty  of  these  meetings;  he 
attended  them  from  about  the  month  of  December 
or  January,  down  to  the  month  of  June,  when, 
either  through  compunction  for  the  share  he  had 
himself  borne  in  those  mischievous  proceedings,  or 
whatever  else  might  be  his  motive — I  trust  it  was 
an  honorable  one,  and  that  it  will  in  iia  effects 
prove  beneficial  to  his  country — he  came  forward 
and  detailed  this  business  to  the  magistrates  of 


278  SPEECH   OF   ME.    LAW   ON   THE 

this  country.  It  became  them,  having  such  circum- 
stances related  to  them,  and  having  it  also  con- 
firmed by  other  evidence,  that  there  were  numerous 
nightly  meetings  of  this  sort  held  at  stated  inter- 
vals at  the  house  of  Walker,  upon  having  the 
objects  of  these  meetings  detailed  and  verified  to 
them — it  became  them,  I  say,  to  use  means  for 
suppressing  a  mischief  of  such  extent  and  magni- 
tude. It  was  accordingly  thought  proper  to  insti- 
tute this  prosecution  for  the  purpose  of  bringing 
these  enormous  proceedings  into  public  discussion 
and  inquiry,  before  a  jury  of  the  country,  and  for 
the  purpose  of  eventually  bringing  to  condign 
punishment  the  persons  immediately  concerned  in 
them. 

Gentlemen,  the  evidence  of  this  person,  the 
witness  I  have  mentioned,  will  unquestionably  be 
assailed  and  attacked  by  a  great  deal  of  attempted 
contradiction.  His  character  will,  I  have  no  doubt, 
be  arraigned  and  drawn  in  question  from  the  ear- 
liest period  to  which  the  defendants  can  have  an 
opportunity  of  access  for  materials  respecting  it. 
Upon  nothing  but  upon  the  effectual  impeachment 
of  the  character  of  this  witness,  can  they  bottom 
any  probable  expectations  of  acquittal;  to  that 
point,  therefore,  their  efforts  will  be  mainly  di- 
rected. I  wish  their  efforts  had  been  hitherto 
directed  innocently  toward  the  attainment  of  this 
object,  and  that  no  opportunities  had  been  recently 


TRIAL  OF  THOMAS   WALKER.  270 

taken,  in  occasional  meetings  and  conversations,  to 
attempt  to  tamper  with  the  testimony  of  this  wit- 
ness. There  are  other  practices,  which,  next  to  an 
actual  tampering  with  the  testimony  of  a  witness, 
are  extremely  mischievous  to  the  regular  course 
and  administration  of  justice.  I  mean  attempts  to 
lure  a  witness  into  conversations  respecting  the 
subject  of  his  testimony;  of  this  we  have  seen 
many  very  blamable  instances  in  the  course  of 
the  present  circuit,  where  conversations  have  been 
set  on  foot  for  the  purpose  of  catching  at  some 
particular  expressions,  inadvertently  dropped  by  a 
witness,  and  of  afterwards  bringing  them  forward, 
separately  and  detached  from  the  rest  of  the  con- 
versation,  in  order  to  give  a  different  color  and 
complexion  to  the  substance  of  his  evidence,  and 
to  weaken  the  effect  and  credit  of  the  whole. 

Gentlemen,  these  attempts  are  too  commonly 
made;  happily,  however,  for  public  justice,  they 
are  commonly  unsuccessful,  because  they  do  and 
must,  with  every  honorable  mind,  recoil  upon  the 
party  making  them.  Private  applications  to  a 
person  not  only  known  to  be  an  adverse  witness, 
but  to  be  the  very  witness  upon  whose  credit  the 
prosecution  most  materially  depends;  private  con- 
versations with  such  a  witness,  for  the  purpose  of 
getting  from  him  declarations  which  may  be  after- 
wards opposed  in  seeming  contradiction  to  his 
solemn  testimony  upon  oath,  are  of  themselves  so 


280  SPEECH    OF    MR.    LAW    ON    THE 

dishonorable,  that,  with  every  well-disposed  and 
well-judging  mind,  they  will  naturally  produce  an 
effect  directly  contrary  to  the  •  expectations  of  the 
persons  who  make  them. 

I  know,  gentlemen,  what  I  have  most  to  fear 
upon  this  occasion ;  I  know  the  vigor  and  energy 
of  the  mind  of  my  learned  friend.  I  have  long 
felt  and  admired  the  powerful  effects  of  his  vari- 
ous talents ;  I  know  the  ingenious  sophistry  by 
which  he  can  mislead,  and  the  fascination  of  that 
eloquence  by  which  he  can  subdue  the  minds  of 
those  to  whom  he  addresses  himself.  I  know  what 
he  can  do  to-day,  by  seeing  what  he  has  done  upon 
many  other  occasions  before.  But  at  the  same 
time,  gentlemen,  knowing  what  he  is,  I  am  some- 
what consoled  in  knowing  you.  I  have  practiced 
for  several  years  in  this  place ;  I  know  the  sound 
discretion  and  judgment  by  which  your  verdicts 
are  generally  governed ;  and  upon  the  credit  of 
that  experience,  I  trust  that  it  will  not  be  in  the 
power  of  my  friend,  by  any  arts  he  is  able  to  em- 
ploy, to  seduce  you  a  single  step  from  the  sober 
paths  of  truth  and  justice.  You  will  hear  the  evi- 
dence with  the  attention  which  becomes  men  who 
are  deciding  on  the  fate  of  others.  If  these  defend- 
ants be  innocent,  and  my  learned  friend  is  able  to 
substantiate  their  innocence,  to  jour  satisfaction, 
for  God's  sake  let  them  be  acquitted ;  but  if  that 
innocence  cannot  be  clearly  and  satisfactorily  estab- 


TRIAL  OF  THOMAS  WALKER.        281 

lished,  I  stand  here  interested  as  I  am  in  common 
with  him  in  the  acquittal  of  innocence,  at  the  same 
time,  however,  demanding  the  rights  of  public  jus- 
tice against  the  guilty.  It  imports  the  safety  of 
yourselves,  it  imports  the  safety  of  our  country,  it 
imports  the  existence  and  security  of  everything 
that  is  dear  to  us,  if  these  men  be  not  innocent, 
that  no  considerations  of  tenderness  and  humanity, 
no  considerations  of  any  sort,  short  of  what  the 
actual  abstract  justice  of  the  case  may  require, 
should  prevent  the  hand  of  punishment  from  fall- 
ing heavy  on  them. 

Having  therefore,  gentlemen,  given  you  this 
short  detail  and  explanation  of  the  principal  facts 
which  are  about  to  be  laid  before  you  in  evidence, 
I  will  now  close  the  first  part  of  the  trouble  I  must 
give  you.  I  shall,  by-and-by,  when  my  learned 
friend  has  adduced  that  evidence  by  which  he  will 
attempt  to  assail  the  character  and  credit  of  the 
principal  witness  for  the  prosecution,  have  an  op- 
portunity of  addressing  you  again  ;  and,  I  trust,  in 
the  meantime,  whatever  attention  you  may  be  dis- 
posed to  pay  to  the  exertions  of  those  who  will 
labor  to  establish  the  innocence  of  the  persons  now 
arraigned  before  you,  that  you  will,  at  the  same 
time,  steadily  bear  in  mind  the  duties  which  you 
owe  to  yourselves  and  to  your  country ;  recollect- 
ing, as  I  am  sure  you  will,  that  we  all  look  up  to 
your  firmness  and  integrity  at  this  moment,  for  the 


282      SPEECH  OF  ME.  ERSKINE  ON  THE 

protection  of  that  constitution  from  which  we 
derive  every  blessing  we  individually  or  collectively 
enjoy. 


SPEECH     OF     MR.    ERSKINE. 


GENTLEMEN  OF  THE  JURY  :  I  listened  with  the 
greatest  attention,  and  in  honor  of  my  learned 
friend  I  must  say  with  the  greatest  approbation, 
to  much  of  his  address  to  you  in  the  opening  of 
this  cause;  it  was  candid  and  manly,  and  con- 
tained many  truths  which  I  have  no  interest  to 
deny ;  one  in  particular  which  involves  in  it  indeed 
the  very  principle  of  the  defence,  the  value  of  that 
happy  constitution  of  government  which  has  so 
long  existed  in  this  island.  I  hope  that  none  of  us 
will  ever  forget  the  gratitude  which  we  owe  to  the 
Divine  Providence,  and,  under  its  blessings,  to  the 
wisdom  of  our  forefathers,  for  the  happy  estab- 
lishment of  law  and  justice  under  which  we  live, 
and  under  which,  thank  God,  my  clients  are  this 
day  to  be  judged.  Great  indeed  will  be  the  con- 
demnation of  any  man  who  does  not  feel  and  act  as 
he  ought  to  do  upon  this  subject;  for  surely  if 


TRIAL   OF  THOMAS   WALKEB.  283 

there  be  one  privilege  greater  than  another,  which 
the  benevolent  Author  of  our  being  has  been 
•pleased  to  dispense  to  his  creatures  since  the  exist- 
ence of  the  earth  which  we  inhabit,  it  is  to  have 
cast  our  lots  in  this  age  and  country.  For  myself,  I 
would  in  spirit  prostrate  myself  daily  and  hourly 
before  Heaven  to  acknowledge  it,  and  instead  of 
coming  from  the  house  of  Mr.  Walker,  and  accom- 
panying him  at  Preston,  the  only  trutlis  which  the 
witness  has  uttered  since  he  came  into  court,  if  I 
believed  him  capable  of  committing  the  crimes  he 
is  charged  with,  I  would  rather  have  gone  into  my 
grave  than  have  been  found  as  a  friend  under  his 
roof. 

Gentlemen,  the  crime  imputed  to  the  defendant 
is  a  serious  one  indeed ;  Mr.  Law  has  told  you,  and 
told  you  truly,  that  this  indictment  has  not  at  all 
for  its  object  to  condemn  or  to  question  the  par- 
ticular opinions  which  Mr.  Walker  and  the  other 
defendants  may  entertain  concerning  the  principles 
of  this  government,  or  the  reforms  which  the 
wisest  governments  may  from  time  to  time  require; 
he  is  indeed  a  man  of  too  enlarged  a  mind  to  think 
for  a  moment  that  his  country  can  be  served  by 
interrupting  the  current  of  liberal  opinion,  or 
overawing  the  legal  freedom  of  English  sentiment 
by  the  terrors  of  criminal  prosecution;  he  openly 
disavows  such  a  system,  and  has,  I  think,  even 
more  than  hinted  to  us  that  there  may  be  seasons 


284     SPEECH  OF  MR.  EESKINE  ON  THE 

when  an  attention  to  reform  may  be  salutary,  and 
that  every  individual  under  our  happy  establish- 
ment has  a  right  upon  this  important  subject  to 
think  for  himself. 

The  defendants,  therefore,  are  not  arraigned  be- 
fore you,  nor  even  censured  in  observation,  for  hav- 
ing associated  at  Manchester  to  promote  what  they 
felt  to  be  the  cause  of  religious  and  civil  liberty ; 
nor  are  they  arraigned  or  censured  for  seeking  to 
collect  the  sentiments  of  their  neighbors  and  the 
public  concerning  the  necessity  of  a  reform  in  the 
constitution  of  Parliament ;  these  sentiments  and 
objects  are  wholly  out  of  the  question ;  but  they 
are  charged  with  having  unlawfully  confederated 
and  conspired  to  destroy  and  overthrow  the  gov- 
ernment of  the  kingdom  by  open  force  and  rebel- 
lion, and  that  to  effect  this  wicked  purpose  they 
exercised  the  King's  subjects  with  arms,  perverting 
that  which  is  our  birthright,  for  the  protection  of 
our  lives  and  our  property,  to  the  malignant  pur- 
pose of  supporting  the  enemies  of  this  kingdom  in 
case  of  an  invasion ;  in  order,  as  my  friend  has 
truly  said,  for  I  admit  the  consequence  if  the  fact 
be  established,  in  order  to  make  our  country  that 
scene  of  confusion  and  desolation  which  fills  every 
man's  heart  with  dismay  and  horror,  when  he  only 
reads  or  thinks  of  what  is  transacting  at  a  distance 
upon  the  bloody  theatre  of  the  war  that  is  now 
desolating  the  world.  This,  and  nothing  different 


TRIAL  OF  THOMAS  WALKER.        285 

or  less  than  this,  is  the  charge  which  is  made  ujxm 
the  defendants,  at  the  head  of  whom  stands  hefore 
you  a  merchant  of  honor,  property,  character,  and 
respect;  who  has  long  enjoyed  the  countenance 
and  friendship  of  many  of  the  worthiest  and  most 
illustrious  persons  in  the  kingdom,  and  whose  prin- 
ciples and  conduct  have  more  than  once  been  pub- 
licly and  gratefully  acknowledged  by  the  com- 
munity of  which  he  is  a  member,  as  the  friend  of 
their  commerce  and  liberties,  and  the  protector  of 
the  most  essential  privileges  which  an  Englishman 
can  enjoy  under  the  laws. 

Gentlemen,  such  a  prosecution  against  such  a 
person  ought  to  have  had  a  strong  foundation ; 
putting  private  justice  and  all  respect  of  Arsons 
wholly  out  of  the  question,  it  should  not,  but  uj>on 
the  most  clear  conviction  and  the  mast  urgent 
necessity,  have  been  instituted  at  all.  We  are  at 
this  moment  in  a  most  awful  and  fearful  crisis  of 
affairs;  we  are  told  authentically  by  the  sovereign 
from  the  throne,  that  our  enemies  in  France  are 
meditating  an  invasion,  and  the  kingdom,  from  one 
end  to  another,  is  in  motion  to  rej>el  it.  In  such  a 
state  of  things,  and  when  the  public  transactions 
of  government  and  justice  in  the  two  countries 
pass  and  repass  from  one  another  as  if  upon  the 
wings  of  the  wind,  is  it  politic  to  prepare  this  sol- 
emn array  of  justice  upon  such  a  dangerous  subject, 
without  a  reasonable  foundation,  or  rather  without 


286  SPEECH   OF   MR.    EESKINE   ON   THE 

an  urgent  call?  At  a  time  when  it  is  our  common 
interest  that  France  should  believe  us  to  be,  what 
we  are  and  ever  have  been,  one  heart  and  soul  to 
protect  our  country  and  our  constitution,  is  it  wise 
or  prudent,  putting  private  justice  wholly  out  of 
the  question,  that  it  should  appear  to  the  councils 
of  France,  apt  enough  to  exaggerate  advantages, 
that  the  judge  representing  the  government  in  the 
northern  district  of  this  kingdom  should  be  sitting 
here  in  judgment  in  the  presence  of  all  the  gentle- 
men whose  property  lies  in  this  great  county,  to 
trace  and  to  punish  the  existence  of  a  rebellious 
conspiracy  to  support  an  invasion  from  France?  a 
conspiracy  not  existing  in  a  single  district  alone, 
but  maintaining  itself  by  criminal  concert  and  cor- 
respondence in  every  district,  town,  and  city  in  the 
kingdom;  projecting  nothing  less  than  the  utter 
destruction  and  subversion  of  the  government. 
Good  God!  can  it  be  for  the  interest  of  govern- 
ment that  such  an  account  of  the  state  of  this 
country  should  go  forth?  Unfortunately,  the  rumor 
and  effect  of  this  day's  business  will  spread  where 
the  evidence  may  not  travel  with  it,  to  serve  as  an 
antidote  to  the  mischief ;  for  certainly  the  scene 
which  we  have  this  day  witnessed  can  never  be  im- 
agined in  France  or  in  Europe,  where  the  spirit  of 
our  law  is  known  and  understood;  it  never  will  be 
credited  that  all  this  serious  process  has  no  founda- 
tion either  in  fact  or  probability,  and  that  it  stands 


TRIAL  OF  THOMAS   WALKER.  287 

upon  the  single  evidence  of  a  common  soldier,  or 
rather  a  common  vagabond,  discharged  as  unfit  to 
be  a  soldier;  of  a  wretch,  lost  to  all  reverence  for 
God  and  religion,  who  vows  that  he  has  none  for 
either,  and  who  is  incapable  of  observing  even 
common  decency  as  a  witness  in  the  court ;  this 
will  never  be  believed ;  and  the  country,  whose 
beat  strength  at  home  and  abroad  is  the  soundness 
of  all  its  members,  will  suffer  from  the  very  credit 
which  government  will  receive  for  the  justice  of 
this  proceeding. 

What,  then,  can  be  more  beneficial,  than  that 
you  should  make  haste,  as  public  and  private  men, 
to  undeceive  the  world,  to  do  justice  to  your  fel- 
low-subjects, and  to  vindicate  your  country  ?  what 
can  be  more  beneficial  than  that  you,  as  honest 
men,  should  upon  your  oaths  pronounce  and  record 
by  your  verdict,  that,  however  Englishmen  may 
differ  in  religious  opinions,  which  in  such  a  land  of 
thinking  ever  must  be  the  case ;  that  however  they 
may  separate  in  political  speculations  as  to  the 
wisest  and  best  formation  of  a  House  of  Commons  ; 
that  though  some  may  think  highly  of  the  Church 
and  its  establishment,  whilst  others,  but  with  equal 
sincerity,  prefer  the  worship  of  God  with  other 
ceremonies,  or  without  any  ceremonies  ;  that  though 
some  mav  think  it  unsafe  to  touch  the  constitution 

w 

at  this  particular  moment,  and  some,  that  at  no 
time  it  is  safe  to  touch  it,  while  others  think  that 


288      SPEECH  OF  MR.  EESKINE  ON  THE 

its  very  existence  depends  upon  immediate  reforma- 
tion ;  what,  I  repeat,  can  be  more  beneficial  than 
that  your  verdict  should  establish  that  though  the 
country  is  thus  divided  upon  those  political  sub- 
jects, as  it  ever  has  been  in  every  age  and  period 
of  our  history,  yet  that  we  all  recollect  our  duty  to 
the  land  which  our  fathers  have  left  us  as  an  inher- 
itance ;  that  we  all  know  and  feel  we  have  one 
common  duty  and  one  common  interest  ?  This 
will  be  the  language  of  your  verdict,  whatever  you 
yourselves  may  think  upon  these  topics  connected 
with,  but  still  collateral  to  the  cause  ;  whether  you 
shall  approve  or  disapprove  of  the  opinions  or 
objects  of  the  defendants,  I  know  that  you  will 
still,  with  one  mind,  revolt  with  indignation  at  the 
evidence  you  have  heard,  when  you  shall  have 
heard  also  the  observations  I  have  to  make  upon 
it,  and  what  is  far  more  important,  the  facts  I  shall 
bring  forward  to  encounter  it.  To  these  last  words 
I  beg  your  particular  attention.  I  say,  when  you 
shall  hear  the  facts  with  which  I  mean  to  encounter 
the  evidence.  My  learned  friend  has  supposed  that 
I  had  nothing  wherewith  to  support  the  cause,  but 
by  railing  at  his  witness,  and  endeavoring  to  tra- 
duce his  character  by  calling  others  to  reproach  it. 
He  has  told  you,  that  I  could  encounter  his  testi- 
mony by  no  one  fact,  but  that  he  had  only  to 
apprehend  the  influence  which  my  address  might 
have  upon  you;  as  if,  I,  an  utter  stranger  here, 


TRIAL   OF   THOMAS   WAIJCER.  L'S'.I 

could  have  any  possible  weight  or  influence,  to 
oppose  to  him  who  has  been  so  long  known  anil 
honored  in  this  place. 

But  although  my  learned  friend  seems  to  have 
expected  no  adverse  evidence,  he  appears  to  have 
been  apprehensive  for  the  credit  and  consistency 
of  his  own ;  since  he  has  told  you  that  we  have 
drawn  this  man  into  a  lure  not  uncommon  for  the 
purpose  of  entrapping  witnesses  into  a  contradic- 
tion of  testimony  ;  that  we  have  ensnared  him  into 
the  company  of  persons  who  have  drawn  him  in 
by  insidious  questions,  and  written  down  what  he 
has  been  made  to  declare  to  them  in  destruction 
of  his  original  evidence,  for  the  wicked  purj>ose  of 
attacking  the  sworn  testimony  of  truth,  and  cutting 
down  the  consequences  which  would  have  followed 
from  it  to  the  defendants.  If  such  a  scene  of  wick- 
edness had  been  practiced,  it  must  have  been 
known  to  the  witness  himself;  yet  my  learned 
friend  will  recollect,  that  though  he  made  this 
charge  in  his  hearing  before  his  examination,  he 
positively  denied  the  whole  of  it ;  I  put  it  to  him 
point  by  point,  pursuing  the  opening  as  my  guide, 
and  he  denied  that  he  had  been  drawn  into  any 
lure;  he  denied  that  any  trap  had  been  laid  for 
him  ;  he  denied  that  he  had  been  asked  any  ques- 
tions by  anybody.  If  I  am  mistaken,  I  desire  to 
be  corrected,  and  particularly  so  by  my  learned 
friend,  because  I  wish  to  state  the  evidence  as  it 
19  B 


290     SPEECH  OF  MR.  EESKINE  ON  THE 

was  given.  He  has  then  denied  all  these  things; 
he  has  further  sworn  that  he  never  acknowledged 
to  Mr.  Walker  that  he  had  wronged  or  injured 
him,  or  that  the  evidence  he  had  given  against  him 
was  false ;  that  he  had  never  gone  down  upon  his 
knees  in  his  presence,  to  implore  his  forgiveness; 
that  he  never  held  his  hands  before  his  face,  to 
hide  the  tears  that  were  flowing  down  his  cheeks 
in  the  moment  of  contrition,  or  of  terror  at  the 
consequence  of  his  crimes:  all  this  he  has  positively 
and  repeatedly  sworn  in  answer  to  questions  delib- 
erately put  to  him  ;  and  instead  of  answering  with 
doubt,  or  as  trying  to  recollect  whether  anything 
approaching  such  a  representation  had  happened, 
he  put  his  hands  to  his  sides,  and  laughed,  as  you 
saw,  at  me  who  put  the  questions,  with  that  sneer 
of  contempt  and  insolence  which  accompanied  the 
whole  of  his  evidence,  on  my  part  at  least  of  his 
examination.  If  nothing  therefore  was  at  stake  but 
the  destruction  of  this  man's  evidence,  and  with  it 
the  prosecution  which  rests  for  its  whole  existence 
upon  it,  I  should  proceed  at  once  to  confound  him 
with  testimony,  the  truth  of  which  my  learned 
friend  himself  will,  I  am  sure,  not  bring  into  ques- 
tion; but  as  I  wish  the  whole  conduct  of  my 
clients  to  stand  fairly  before  you,  and  not  to  rest 
merely  upon  positive  swearing  destructive  of  op- 
posite testimony :  and  as  I  wish  the  evidence  I 
mean  to  bring  before  you,  and  the  falsehood  of 


TRIAL   OF  THOMAS   WALKER.  201 

that  which  it  opposes,  to  be  clearly  understood ;  I 
will  state  to  you  how  it  has  happened  that  this 
Btrange  prosecution  has  come  before  you. 

The  town. of  Manchester  has  been  long  extremely 
divided  in  religious  and  civil  opinions;  and  while 
I  wish  to  vindicate  those  whom  I  represent  in  this 
place,  I  desire  not  to  inflame  difference's  which  I 
hope  in  a  short  season  will  be  forgotten  ;  I  am 
desirous,  on  the  contrary,  that  everything  which 
proceeds  from  me  may  be  the  means  of  conciliating 
rather  than  exasperating  dissensions  which  have 
already  produced  much  mischief,  and  which  per- 
haps, but  for  the  lesson  of  to-day,  might  have 
produced  much  more. 

Gentlemen,  you  all  know  that  there  have  been  for 
centuries  past  in  this  country  various  sects  of 
Christians,  worshipping  God  in  different  forms,  and 
holding  a  diversity  of  religious  opinions ;  and  that 
the  law  has  for  a  long  season  deprived  numerous 
filnmm,  even  of  His  Majesty's  protestant  subjects, 
of  privileges  which  it  confers  upon  the  rest  of  the 
public,  setting  as  it  were  a  mark  upon  them,  and 
keeping  them  below  the  level  of  the  community, 
by  shutting  them  out  from  offices  of  trust  and  con- 
fidence in  the  country.  Whether  these  laws  be  wise 
or  unwise,  whether  they  ought  to  be  continued  or 
abolished,  are  questions  for  the  legislature,  and  not 
for  us ;  but  thus  much  I  am  warranted  in  saying, 
that  it  is  the  undoubted  privilege  of  every  man  or 


292  SPEECH    OF    ME.    ERSKINE    ON    THE 

class  of  men  in  England,  to  petition  Parliament  for 
the  removal  of  any  system  or  law,  which  either 
actually  does  aggrieve,  or  which  is  thought  to  be  a 
grievance.  Impressed  with  the  sense  of  this  in- 
herent privilege,  this  very  constitutional  society, 
which  is  supposed  by  my  learned  friend  the  Attor- 
ney-General, to  have  started  up  on  the  breaking  out 
of  the  war  with  France,  for  the  purpose  of  destroy- 
ing the  constitution  —  this  very  society  owed  its 
birth  to  the  assertion  of  this  indisputable  birthright 
of  Englishmen,  which  the  authors  of  this  prosecu- 
tion most  rashly  thought  proper  to  stigmatize  and 
resist.  It  is  well  known  that  in  1790  the  dissenters 
in  the  different  parts  of  the  kingdom  were  solicitous 
to  bring  before  Parliament  their  application  to  put 
an  end  forever  to  all  divisions  upon  religious  sub- 
jects, and  to  make  us  all,  what  I  look  forward  yet 
to  see,  one  harmonious  body,  living  like  one  family 
together.  It  is  also  well  remembered  with  what 
zeal  and  eloquence  that  great  question  was  managed 
in  the  House  of  Commons  by  Mr.  Fox,  and  the 
large  majority  with  which  the  repeal  of  the  test 
acts  was  rejected ;  it  seems  therefore  strange  that 
the  period  of  this  rejection  should  be  considered 
as  an  era  either  of  danger  to  the  Church  or  of  re- 
ligious triumph  to  Christians ;  nevertheless,  a  large 
body  of  gentlemen  and  others  at  Manchester, 
whose  motives  I  am  far  from  wishing  to  scrutinize 
or  condemn,  considered  this  very  wish  of  the  dis- 


TRIAL  OF  THOMAS  WALKER.        203 

senters  as  injurious  to  their  rights,  and  as  dangerous 
to  the  church  and  State;  they  published  advertise- 
ments expressive  of  these  sentiments,  and  the 
rejection  of  the  bill  in  the  Commons  produced  a 
society  styled  the  Church  and  King  club,  which 
met  for  the  first  time  to  celebrate  what  they  called 
the  glorious  decision  of  the  House  of  Commons  in 
rejecting  the  prayer  of  their  dissenting  brethren. 

Gentlemen,  it  is  not  for  me  to  say,  that  it  was 
unjust  or  impolitic  in  Parliament  to  reject  the  ap- 
plication ;  but  surely  I  may  without  offence  suggest 
that  it  was  hardly  a  fit  subject  of  triumph,  that  a 
great  number  of  fellow-subjects,  amounting,  I  be- 
lieve, to  more  than  a  million  in  this  country,  had 
miscarried  in  an  object  which  they  thought  bene- 
ficial, and  which  they  had  a  most  unquestionable 
right  to  submit  to  the  government  under  which 
they  lived ;  yet  for  this  cause  alone,  France  and 
every  other  topic  of  controversy  being  yet  unborn 
— the  Church  and  King  were  held  forth  to  be  in 
danger;  a  society  was  instituted  for  their  protec- 
tion, and  an  uniform  appointed  with  the  church  of 
Manchester  upon  the  button. 

Gentlemen,  without  calling  for  any  censure  upon 
this  proceeding,  but  leaving  it  to  every  man's  own 
reflection,  is  it  to  be  wondered  at  or  condemned, 
that  those  who  thought  more  largely  and  liberally 
on  subjects  of  freedom  both  civil  and  religious,  but 
who  found  themselves  persecuted  for  sentiments 


294  SPEECH   OF   ME.    EKSKINE   ON    THE 

and  conduct  the  most  avowedly  legal  and  constitu- 
tional, should  associate  for  the  support  of  their 
rights  and  privileges  as  Englishmen,  and  assemble 
to  consider  how  they  might  best  obtain  a  more 
adequate  representation  of  the  people  of  Great 
Britain  in  Parliament  ? 

Gentlemen,  this  society  continued  with  these 
objects  in  view  until  the  issuing  of  the  proclama- 
tion against  Republicans  and  Levellers,  calling 
upon  the  magistrates  to  exert  themselves  through- 
out the  kingdom  to  avert  some  danger  with  which, 
it  seems,  our  rulers  thought  this  kingdom  was 
likely  to  be  visited.  Of  this  danger,  or  the  proba- 
bility of  it,  either  generally  or  at  Manchester  in 
particular,  my  learned  friend  has  given  no  evi- 
dence from  any  quarter  but  that  of  Mr.  Dunn;  he 
has  not  proved  that  there  has  been  in  any  one  part 
of  the  kingdom  anything  which  could  lead  govern- 
ment to  apprehend  that  meetings  existed  for  the 
purposes  pointed  at;  but  that  is  out  of  the  question ; 
government  had  a  right  to  think  for  itself,  and  to 
issue  the  proclamation.  The  publicans  however 
(as  it  appears  upon  the  cross-examination  of  the 
witness),  probably  directed  by  the  magistrates, 
thought  fit  to  shut  up  their  houses  opened  by  im- 
memorial law  to  all  the  King's  subjects,  and  to  re- 
fuse admission  to  all  the  gentlemen  and  tradesmen 
of  the  town  who  did  not  associate  under  the  ban- 
ners of  this  Church  and  King  club.  This  illegal 


TRIAL  OF  THOMAS   WALKER.  295 

proceeding  was  accompanied  with  an  advertisement 
containing  a  vehement  libel  against  all  those  per- 
sons, who,  under  the  protection  of  the  laws,  thought 
themselves  as  much  at  liberty  to  consider  their 
various  privileges,  as  others  were  to  maintain  the 
establishment  of  the  church.  Upon  this  occasion 
Mr.  Walker  honorably  stood  forth,  and  opened  his 
house  to  this  constitutional  society  at  a  time  when 
they  must  otherwise  have  been  in  the  streets 
by  a  combination  of  the  publicans  to  reject  them. 
Now,  gentlemen,  I  put  it  to  you  as  men  of  honor, 
whether  it  can  be  justly  attributed  to  Mr.  Walker 
••  seditious,  that  he  opened  his  house  to  a  society 
of  gentlemen  and  tradesmen,  whose  good  principles 
he  was  acquainted  with,  who  had  been  wantonly 
opj)osed  by  this  Church  and  King  club,  whose 
privileges  they  had  never  invaded  or  questioned, 
and  against  whom,  in  this  day  of  trial,  there  is  no 
man  to  be  found  who  can  come  forward  to  imi>each 
anything  they  have  done,  or  a  syllable  they  have 
uttered.  Vehement  as  the  desire  most  apparently 
has  been,  to  bring  this  gentleman  and  his  associates, 
as  they  are  called,  to  justice,  yet  not  one  magistrate, 
no  man  of  property  or  figure  in  this  town  or  its 
neighborhood,  no  person  having  the  King's  author- 
ity in  the  country,  has  appeared  to  prove  one  fact 
or  circumstance  from  whence  even  the  vaguest 
suspicion  could  arise,  that  anything  criminal  had 
been  intended  or  transacted;  no  constable,  who 


296  SPEECH    OF    MR.    ERSKINE    ON    THE 

had  ever  been  sent  to  guard,  lest  the  peace  might 
be  broken,  or  to  make  inquiries  for  its  preservation; 
not  a  paper  seized  throughout  England,  nor  any 
other  prosecution  instituted  except  upon  the  unsup- 
ported evidence  of  the  same  miserable  wretch  who 
stands  before  you;  the  town,  neighborhood,  and 
county,  remaining  in  the  same  profound  state  of 
tranquillity  as  it  is  at  the  moment  I  am  addressing 
you. 

Gentlemen,  when  Parliament  assembled  at  the 
end  of  1792,  previous  to  the  commencement  of  the 
war,  these  unhappy  differences  were  suddenly,  and, 
as  you  will  see,  from  no  fault  of  Mr.  Walker's, 
brought  to  the  crisis  which  produced  this  trial;  a 
meeting  was  held  in  Manchester  to  prepare  an 
address  of  thanks  to  the  King  for  having  embodied 
the  militia  during  the  recess  of  Parliament,  and  for 
having  put  the  kingdom  in  a  posture  of  defence. 
I  do  not  seek  to  question  the  measure  of  govern- 
ment which  gave  rise  to  this  approbation,  or  the 
approbation  itself  which  the  approvers  had  a  right 
to  bestow;  but  others  had  an  equal  right  to  enter- 
tain other  opinions.  On  all  public  measures  the 
decision  is  undoubtedly  with  government;  but  the 
people  at  the  same  time  have  a  right  to  think  upon 
them,  and  to  express  what  they  think;  surely  war, 
of  all  other  subjects,  is  one  which  the  people  have 
a  right  to  consider;  surely  it  can  be  no  offence  for 
those  whose  properties  were  to  be  taxed,  and 


TRIAL  OF  THOMAS   WALKER.  2t>7 

whose  inheritances  were  to  be  lessened  by  it,  to 
jwuse  a  little  upon  the  eve  of  a  contest,  the  end  of 
which  no  man  can  foresee,  the  expenses  of  which 
no  man  can  calculate,  or  estimate  the  blood  to  flow 
from  its  calamities.  Purely  it  is  a  liberty  secured 
to  us  by  the  first  principles  of  our  constitution,  to 
address  the  Sovereign,  or  instruct  our  representa- 
tives, to  avert  the  greatest  evil  that  can  imp-nd 
over  a  nation. 

Gentlemen,  one  of  those  societies,  called  the 
Reformation  Society,  met  to  exercise  this  un- 
doubted privilege,  and  in  my  mind,  upon  the 
fittest  occasion  that  ever  presented  itself;  yet 
mark  the  moderation  of  Mr.  Walker,  whose  vio- 
lence is  arraigned  before  you.  Though  he  was  no 
member  of  that  body,  and  though  he  agreed  in  the 
propriety  of  the  measure  in  agitation,  yet  he  sug- 
gested to  them,  that  their  opposition  might  be 
made  a  pretence  for  tumult,  that  tranquility  in 
such  a  crisis  was  by  every  means  to  be  promoted, 
and  therefore  advised  them  to  abstain  from  the 
meeting;  so  that  the  other  meeting  was  left  to 
carry  its  approbation  of  government  and  of  the 
war,  without  a  dissenting  voice.  If  ever,  there- 
fore, there  was  a  time  when  the  church  and  King 
might  be  said  to  be  out  of  danger  at  Manchester,  it 
was  at  this  moment;  yet  on  this  very  day  they 
hoisted  the  banners  of  alarm  to  both  ;  they  paraded 
with  them  through  every  quarter  of  the  town ; 


298      SPEECH  OF  MR.  ERSKINE  ON  THE 

mobs  by  degrees  were  collected,  and  in  the  even- 
ing of  this  very  llth  of  December,  the  houses  of 
Mr.  Walker  and  others  were  attacked.  You  will 
observe  that  before  this  day  no  man  has  talked 
about  arms  at  Mr.  Walker's ;  if  an  honorable 
gentleman  upon  the  jury  who  has  been  carefully 
taking  notes  of  the  evidence,  will  have  the  good- 
ness to  refer  to  them,  he  will  find  that  it  was  not 
till  near  a  week  after  this,  so  Dunn  expresses  it, 
that  a  single  firelock  had  been  seen ;  nor  indeed 
does  any  part  of  the  evidence  go  back  beyond  this 
time,  when  Mr.  Walker's  house  was  thus  surrounded 
and  attacked  by  a  riotous  and  disorderly  mob. 
He  was  aware  of  the  probable  consequences  of 
such  an  attack ;  he  knew,  by  the  recent  example 
of  Birmingham,  what  he  and  others  professing 
sentiments  of  freedom  had  to  expect ;  he  therefore 
got  together  a  few  fire-arms,  which  he  had  long 
had  publicly  by  him,  and  an  inventory  of  which, 
with  the  rest  of  his  furniture  at  Barlow  Hall,  had 
been  taken  by  a  sworn  appraiser,  long  before  any- 
thing connected  with  this  indictment  had  an  exist- 
ence ;  and  with  these,  and  the  assistance  of  a  few 
steady  friends,  he  stood  upon  his  defence.  He  was 
advised,  indeed,  to  retire  for  safety  ;  but  knowing 
his  own  innocence,  and  recollecting  the  duty  he 
owed  to  himself,  his  family,  and  the  public,  he 
declared  he  would  remain  there,  to  support  the 
laws,  and  to  defend  his  property,  and  that  he 


TRIAL   OF  THOMAS   WALKER.  299 

would  perish,  rather  than  surrender  those  privi- 
leges, which  every  member  of  the  community  in 
bound  both  from  interest  and  duty  to  maintain ; 
to  alarm  the  multitude,  he  fired  from  the  windows 
over  their  heads,  and  disj)ersed  them ;  but  when, 
the  next  morning,  they  assembled  in  very  great 
numbers  before  his  house,  and  when  a  man  got 
upon  the  churchyard  wall,  and  read  a  most  violent 
and  inflammatory  paper,  inciting  the  jx>pulace  to 
pull  the  house  down,  Mr.  AValker  went  out 
among  them,  and  expostulated  \vith  them,  and 
asked  why  they  had  disgraced  themselves  so  much 
by  attacking  him  the  night  before;  adding,  that 
if  he  had  done  any  of  them,  or  any  person  whom 
they  knew,  any  injury,  he  was,  upon  proof  of  it, 
ready  to  make  them  every  satisfaction  in  his 
power ;  he  also  told  them,  that  he  had  fired  upon 
them  the  night  before,  because  they  were  mad  as 
well  as  drunk ;  that,  if  they  attacked  him  again, 
he  would,  under  the  same  circumstances,  act  a«  he 
had  done  before ;  but,  that  he  was  then  alone  and 
unarmed  in  the  midst  of  them,  and  if  he  had  done 
anything  wrong,  they  were  then  sober,  and  had 
him  completely  in  their  power. 

Gentlemen,  this  was  most  meritorious  conduct. 
You  all  live  at  a  distance  from  the  metropolis,  and 
were  probably,  therefore,  fortunate  enough  neither 
to  be  within  or  near  it  in  1780,  when,  from  begin- 
nings smaller  than  those  which  exhibited  them- 


300  SPEECH    OF    MR.    ERSKINE    OX    THE 

selves  at  Birmingham,  or  even  at  Manchester,  the 
metropolis  of  the  country,  and  with  it  the  country 
itself,  had  nearly  been  undone.  The  beginning  of 
these  things  is  the  season  for  exertion ;  I  shall 
never  indeed  forget  what  I  have  heard  the  late 
mild  and  venerable  magistrate,  Lord  Mansfield, 
say  upon  this  subject,  whose  house  was  one  of  the 
first  attacked  in  London  ;  I  have  more  than  once 
heard  him  say,  that  perhaps  some  blame  might 
have  attached  upon  himself  and  others  in  author- 
ity, for  their  forbearance  in  not  having  directed 
force  to  have  been  at  the  first  moment  repelled  by 
force,  it  being  the  highest  humanity  to  check  the 
infancy  of  tumults. 

Gentlemen,  Mr.  Walker's  conduct  had  the  desired 
effect ;  he  watched  again  on  the  13th  of  December, 
but  the  mob  returned  no  more,  and  the  next  morn- 
ing the  arms  were  locked  up  in  a  bed-chamber  in 
his  house,  where  they  have  remained  ever  since, 
and  where,  of  course,  they  never  could  have  been 
seen  by  the  witness,  whose  whole  evidence  com- 
mences above  a  week  subsequent  to  the  llth  of 
December,  when  they  were  finally  put  aside.  This 
is  the  genuine  history  of  the  business  ;  and  it  must 
therefore  not  a  little  surprise  you,  that  when  the 
charge  is  wholly  confined  to  the  use  of  arms,  Mr. 
Law  should  not  even  have  hinted  to  you  that  Mr. 
Walker's  house  had  been  attacked,  and  that  he 
was  driven  to  stand  upon  his  defence,  as  if  such 


TRIAL   OF   THOMAS   WALKER.  301 

a  thing  had  never  had  an  existence;  indeed  the 
armory  which  must  have  heen  exhibited  in  such  a 
statement,  would  have  but  ill  suited  the  indictment 
or  the  evidence,  and  I  must  therefore  undertake 
the  description  of  it  myself. 

The  arms  having  been  locked  up  as  I  told  you, 
in  the  bed-chamber,  I  was  shown  hist  week  into 
this  house  of  conspiracy,  treason,  and  death,  and 
saw  exposed  to  view  the  mighty  armory  which 
was  to  level  the  beautiful  fabric  of  our  constitu- 
tion, and  to  destroy  the  lives  and  properties  of  ten 
millions  of  people.  It  consisted,  first,  of  six  little 
swivels  purchased  two  years  ago  at  the  sale  of 
Livesey,  Hargrave  &  Co.,  of  whom  we  have  all 
heard  so  much,  by  Mr.  Jackson,  a  gentleman  of 
Manchester,  who  is  also  one  of  the  defendants,  and 
who  gave  them  to  Master  Walker,  a  boy  of  about 
ten  years  of  age.  Swivels,  you  know,  are  guns  so 
called  because  they  turn  upon  a  pivot ;  but  these 
were  taken  off  their  props,  were  painted,  and  put 
upon  blocks  resembling  carriages  of  heavy  cannon, 
and  in  that  shape  may  be  fairly  called  children's 
toys  ;  you  frequently  see  them  in  the  neighborhood 
of  London  adorning  the  houses  of  sober  citizens, 
who,  strangers  to  Mr.  Brown  and  his  improve- 
ments, and  preferring  grandeur  to  taste,  place  them 
ui>on  their  ramparts  at  Mile-End  or  Islington. 
Having,  like  Mr.  Dunn  (I  hope  I  resemble  him  in 
nothing  else)  having,  like  him,  served  his  Majesty 


302  SPEECH    OF    ME.    ERSKIHE   ON   THE 

as  a  soldier  (and  I  am  ready  to  serve  again  if  my 
country's  safety  should  require  it),  I  took  a  closer 
review  of  all  I  saw,  and  observing  that  the  muzzle 
of  one  of  them  was  broken  off,  I  was  curious  to 
know  how  far  this  famous  conspiracy  had  pro- 
ceeded, and  whether  they  had  come  into  action, 
when  I  found  the  accident  had  happened  on  firing 
a  feu  de  joie  upon  his  Majesty's  happy  recovery, 
and  that  they  had  been  afterwards  fired  upon  the 
Prince  of  Wales'  birthday.  These  are  the  only 
times  that,  in  the  hands  of  these  conspirators,  these 
cannon,  big  with  destruction,  had  opened  their 
little  mouths ;  once  to  commemorate  the  indulgent 
and  benign  favor  of  Providence  on  the  recovery  of 
the  Sovereign,  and  once  as  a  congratulation  to  the 
heir  apparent  of  his  crown  on  the  anniversary  of 
his  birth. 

I  went  next,  under  the  protection  of  the  master- 
general  of  this  ordnance,  Mr.  Walker's  chamber- 
maid, to  visit  the  rest  of  the  formidable  array  of 
death,  and  found  a  little  musketoon  about  so  high 
(describing  it);  I  put  my  thumb  upon  it,  when 
out  started  a  little  bayonet  like  the  Jack-in-a-box 
which  we  buy  for  children  at  a  fair;  in  short,  not 
to  weary  you,  gentlemen,  there  was  just  such  a 
parcel  of  arms  of  different  sorts  and  sizes  as  a 
man  collecting  amongst  his  friends,  for  his  defence 
against  the  sudden  violence  of  a  riotous  multitude, 
might  be  expected  to  have  collected.  Here  lay 


TRIAL  OF   THOMAS   WALKER.  303 

throe  or  four  rusty  guns  of  different  dimensions, 
and  here  and  there  a  bayonet  or  broad-sword,  cov- 
ered over  with  dust  and  rust,  so  as  to  be  almost 
luidistinguislmble;  for,  notwithstanding  what  thin 
infamous  wretch  lias  sworn,  we  will  prove  by  wit- 
ness after  witness,  till  you  desire  us  to  finish,  that 
they  were  principally  collected  on  the  llth  of 
December,  the  day  of  the  riot,  and  that  from  the 
12th  in  the  evening,  or  the  13th  in  the  morning, 
they  have  lain  untouched,  as  I  have  described 
them;  that  their  use  began  and  ended  with  the 
necessity,  Mini  ili.-it.  trim  i  tli.-n  timr  t<>  t!i«-  preeent, 
there  never  has  been  a  fire-arm  in  the  warehouse 
of  any  sort  or  description.  This  is  the  whole  on 
which  has  been  built  a  proceeding  that  might 
have  brought  the  defendants  to  the  punishment 
of  death,  for  both  the  charge  and  the  evidence 
amount  to  high  treason;  high  treason  indeed,  un- 
der almost  every  branch  of  the  statute,  since  the 
facts  amount  to  levying  war  against  the  king  by 
a  conspiracy  to  wrest  by  force  the  government  out 
of  his  hands,  to  an  adherence  to  the  king's  ene- 
mies, and  to  a  compassing  of  his  death,  which  is 
a  necessary  consequence  of  an  invading  army  of 
republicans  or  of  any  other  enemies  of  the  state. 
Yet  notwithstanding  the  notoriety  of  these  facts, 
the  unnamed  prosecutors,  and  indeed  I  am  afraid 
to  slander  any  man  or  body  of  men  by  even  a 
guess  upon  the  subject,  have  been  beating  up  as  for 


304  SPEECH    OF    MR.    ERSKINE    ON    THE 

volunteers,  to  procure  another  witness  to  destroy 
the  lives  of  the  gentlemen  before  you,  against 
many  of  whom  warrants  for  high  treason  were 
issued  to  apprehend  them.  Mr.  Walker,  among 
the  rest,  was  the  subject  of  such  a  warrant,  and  as 
soon  as  he  knew  it,  he  behaved,  as  he  lias  through- 
out, like  a  man  and  an  Englishman ;  he  wrote 
immediately  to  the  Secretary  of  State,  who  was 
summoned  here  to-day,  arid  whose  absence  I  do 
not  complain  of,  because  we  have  by  consent  the 
benefit  of  his  testimony.  He  wrote  three  letters  to 
Mr.  Dundas,  one  of  which  was  delivered  by  Mr. 
Wharton,  informing  him  that  he  was  in  London 
on  his  business  as  a  merchant ;  that  if  any  warrant 
had  been  issued  against  him  he  was  ready  to  meet 
it,  and  for  that  purpose  delivered  his  address  where 
it  might  be  executed.  This  Mr.  Walker  did  when 
the  prosecutors  were  in  search  of  another  witness, 
and  when  this  Mr.  Dunn  was  walking  like  a  tame 
sparrow  through  the  New  Bailey,  fed  at  the  public 
or  some  other  expense,  and  suffered  to  go  at  large, 
though  arrested  upon  a  criminal  charge,  and  sent 
into  custody  under  it. 

And  to  what  other  circumstances  need  I  appeal 
for  the  purity  of  the  defendants,  than  that,  under 
the  charge  of  a  conspiracy  extensive  enough  to 
comprehend  in  its  transactions,  if  any  existed,  the 
whole  compass  of  England,  the  tour  of  which  was 
to  have  been  made  by  Mr.  Yorke,  there  has  not 


TRIAL   OF   THOMAS   WALKER.  305 

been  one  man  found  to  utter  a  syllable  about 
tin-in;  no,  not  one  man,  thanks  be  to  God,  who 
has'  so  framed  the  characteristics  of  Englishmen, 
except  the  solitary  infamous  witness  before  you, 
who,  from  what  I  heard  since  I  began  to  address 
you,  may  have  spoken  the  truth  when  he  claimed 
my  acquaintance,  as  I  have  reason  to  think  he 
has  seen  me  before  in  a  criminal  court  of  justice. 

Having  now,  for  the  satisfaction  of  the  defend- 
ants rather  than  from  the  necessity  of  the  case, 
given  you  an  account  of  their  whole  proceedings, 
as  I  shall  establish  them  by  proof;  let  us  examine 
the  evidence  that  has  been  given  against  them,  and 
see  how  the  truth  of  it  could  stand  with  reason  or 
probability,  supposing  it  to  have  been  sworn  to  by 
a  witness  the  most  respectable. 

According  to  Dunn's  own  account,  Mr.  Walker 
had  not  been  at  the  first  meeting,  so  that  when  lie 
first  saw  Dunn  he  did  not  know  either  his  j>erson  or 
his  name ;  he  might  have  been  a  spy  (God  knows 
there  are  enough  of  them),  and  at  that  season 
in  particular,  informers  were  to  be  expected ;  Mr. 
Walker  is  supposed  to  have  said  to  him,  "  What 
is  your  business  here?  "  to  which  he  answered,  "  I 
am  going  to  the  society,"  which  entitled  him  at 
once  to  admission  without  further  ceremony  ;  theie 
was  nobody  to  stop  him  ;  was  he  asked  his  name? 
was  he  balloted  for?  was  he  questioned  as  to  his 
principles?  No;  he  walked  in  at  once;  but  first,  it 
20  B 


306  SPEECH    OF    MR.    EESKINE    ON    THE 

seems,  Mr.  Walker,  who  had  never  before  seen 
him,  inquired  of  him  the  news  from  Ireland,  ob- 
serving by  his  voice  that  he  was  an  Irishman, 
and  asked  what  the  volunteers  were  about,  as  if 
Mr.  Walker  could  possibly  suppose  that  such  a 
person  was  likely  to  have  been  in  a  correspondence 
with  Ireland,  which  told  him  more  than  report 
must  have  told  everybody  else.  Mr.  Dunn  tells 
you  indeed  he  was  no  such  person,  he  was  a  friend, 
as  he  says,  to  the  King  and  constitution,  which  Mr. 
Walker  would  have  found  by  asking  another  ques- 
tion; but,  without  further  inquiry,  he  is  supposed 
to  have  said  to  him  at  once,  "  We  shall  overthrow 
the  constitution  by  and  by ;"  which  the  moment 
Dunn  had  heard,  up  walked  that  affectionate 
subject  of  our  sovereign  lord  the  King  into  Mr. 
Walker's  house,  where  the  constitution  was  to  be 
so  overthrown ;  but  then  he  tells  you  he  thought 
there  was  no  harm  to  be  done,  that  it  was  only  for 
the  benefit  of  the  poor,  and  the  public  good ;  but 
how  could  he  think  so  after  what  he  had  that 
moment  heard  ?  but  he  did  not  know,  it  seems, 
what  Mr.  Walker  meant.  Gentlemen,  do  you 
collect  from  Mr.  Dunn's  discourse  and  deportment 
to-day,  that  he  could  not  tell  but  that  a  man  meant 
good  when  he  had  heard  him  even  express  a  wish 
to  overthrow  the  government  ?  would  you  pull  a 
feather  out  of  a  sparrow's  wing  upon  the  oath  of  a 
man,  who  swears  that  he  believed  a  person  to  have 


TRIAL   OF  THOMAS   WALKER.  307 

been  a  good  subject  in  the  very  moment  he  was 
telling  him  of  an  intended  rebellion  ?  But  why 
sli« .11 1.1  I  fight  a  phantom  with  argument?  Could 
any  man  but  a  driveller  have  possibly  given  such 
an  answer,  as  is  put  into  Mr.  Walker's  mouth,  to  a 
man  he  had  never  seen  in  his  life  ?  However  many 
may  difler  from  Mr.  Walker  in  opinion,  every- 
body, I  believe,  will  admit  that  he  is  an  acute,  in- 
telligent man,  with  an  extensive  knowledge  of  the 
world,  and  not  at  all  likely  to  have  conducted  him- 
self like  an  idiot.  What  follows  next?  Another 
night  he  went  into  the  warehouse,  where  he  saw 
Mr.  Yorke  called  to  the  chair,  who  said  he  was 
going  the  tour  of  the  kingdom,  in  order  to  try  the 
strength  of  the  different  societies,  to  join  fifty 
thousand  men  that  were  expected  to  land  from 
France  in  this  country,  and  that  Mr.  Walker  then 
said,  "  Damn  all  kings — I  know  our  King  has 
seventeen  millions  of  money  in  the  bank  of  Vienna, 
although  he  won't  afford  any  of  it  to  the  poor." 
Gentlemen,  is  this  the  language  of  a  man  of  sense 
and  education?  If  Mr.  Walker  had  the  malignity 
of  a  demon,  would  he  think  of  giving  effect  to  it 
by  such  a  senseless  lie  ?  When  we  know  that, 
from  the  immense  expense  attending  His  Majesty's 
numerous  and  illustrious  family  and  the  great  ne- 
cessities  of  the  state,  he  has  been  obliged  over  and 
over  again  to  have  recourse  to  the  generosity  and 
justice  of  Parliament  to  maintain  the  dignity  of 


308     SPEECH  OF  ME.  EKSKINE  ON  THE 

the  Crown,  could  Mr.  Walker  ever  have  thought 
of  inventing  this  nonsense  about  the  bank  of 
Vienna,  when  ther"e  is  a  bank  too,  in  our  own  coun- 
try, where  he  might  legally  invest  his  property  for 
himself  and  his  heirs  ?  But  Mr.  Walker  did  not 
stop  there ;  he  went  on  and  said,  "  I  should  think 
no  more  of  taking  off  the  King's  head  than  I  should 
of  tearing  this  piece  of  paper."  All  this  happened 
soon  after  his  admission  ;  yet  this  man,  who  repre- 
sents himself  to  you  upon  his  oath  this  day,  as 
having  been  uniformly  a  friend  to  the  constitution, 
as  far  as  he  understood  it;  as  having  left  the 
society  as  soon  as  he  saw  their  mischievous  inclina- 
tions, and  as  having  voluntarily  informed  against 
them,  I  say  this  same  friend  of  the  constitution 
tells  you,  almost  in  the  same  breath,  that  he  con- 
tinued to  attend  their  meetings  from  thirty  to 
forty  times,  where  high  treason  was  committing 
with  open  doors  ;  and  that,  instead  of  giving  infor- 
mation of  his  own  free  choice,  he  was  arrested  in 
the  very  act  of  distributing  some  seditious  publica- 
tion. 

"Gentlemen,  it  is  really  a  serious  consideration, 
that  upon  such  testimony  a  man  should  even  be 
put  upon  his  defence  in  the  courts  of  this  country ; 
upon  such  principles  what  man  is  safe?  I  was 
indeed  but  ill  at  ease  myself  when  Mr.  Dunn  told 
me  he  knew  me  better  than  I  supposed.  What 
security  have  I  at  this  moment  that  he  should  not 


TRIAL  OF   THOMAS   WALKER.  309 

swear  that  he  hail  met  me  under  some  gateway  in 
Lancaster,  and  that  I  had  said  to  him,  "  Well 
Dunn,  I  hope  you  will  not  swear  against  Mr.  Walk- 
er, but  that  you  will  stick  to  the  good  cause : 
damn  all  kings :  damn  the  constitution  ;"  if  the 
witness  were  now  to  swear  this,  into  gaol  I  must 
go;  and  it' my  client  is  in  danger  from  what  has  been 
sworn  ajniinst  him,  what  safety  would  there  be  for 

V 

me?  The  evidence  would  he  equally  positive,  and  I 
am  equally  an  object  of  suspicion  as  Mr.  Walker; 
it  is  said  of  him,  that  he  has  been  a  memb?r  of  a 
society  for  the  reform  of  Parliament ;  so  have  I, 
and  so  am  I  at  this  moment,  and  so  at  all  hazards 
I  will  continue  to  be,  and  I  will  tell  you  why,  gen- 
tlemen,— because  I  hold  it  to  be  essential  to  the 
preservation  of  all  the  ranks  and  orders  of  the 
state,  alike  essential  to  the  prince  and  to  the  peo- 
ple ;  I  have  the  honor  to  be  allied  to  his  Majesty 
in  blood,  and  my  family  has  been  for  centuries  a 
part  of  what  is  now  called  the  aristocracy  of  the 
country;  I  can  therefore  have  no  interest  in  the 
destruction  of  the  constitution. 

In  pursuing  the  probability  of  this  story  (since 
it  must  be  pursued),  let  us  next  advert  to  whether 
anything  appears  to  have  been  done  in  other 
places  which  might  have  been  exposed  by  this 
man's  information.  The  whole  kingdom  is  under 
the  eye  and  dominion  of  magistracy,  awakened  at 
that  time  to  an  extraordinary  vigilance ;  yet  has 


310      SPEECH  OF  ME.  ERSKINE  ON  THE 

any  one  man  been  arrested  even  upon  the  suspicion 
of  any  correspondence  with  the  societies  of  Man- 
chester, good,  bad,  or  indifferent?  Or  has  any 
person  within  the  four  seas  come  to  swear  that  any 
such  correspondence  existed?  So  that  you  are 
desired  to  believe,  upon  Mr.  Dunn's  single  declara- 
tion, that  gentlemen  of  the  description  I  am 
representing,  without  any  end  or  object,  or  concert 
with  others,  were  resolved  to  put  their  lives  into 
the  hands  of  any  miscreant  who  might  be  disposed 
to  swear  them  away,  by  holding  public  meetings 
of  conspiracy  with  open  doors,  and  in  the  presence 
of  all  mankind,  liable  to  be  handed  over  to  justice 
every  moment  of  their  lives,  since  every  tap  at  the 
door  might  have  introduced  a  constable  as  readily 
as  a  member ;  and  to  finish  the  absurdity,  these 
gentlemen  are  made  to  discourse  in  a  manner  that 

o 

would  disgrace  the  lowest  and  most  uninformed 
classes  of  the  community. 

Let  us  next  see  what  interest  Mr.  Walker 
has  in  the  proposed  invasion  of  this  peaceable 
country ;  has  Mr.  Law  proved  that  Mr.  Walker 
had  any  reason  to  expect  protection  from  the 
French  from  any  secret  correspondence  or  com- 
munication more  than  you  or  I  have,  or  that  he 
had  prepared  any  means  of  resisting  the  troops  of 
this  country  ?  How  was  he  to  have  welcomed  these 
strangers  into  our  land  ?  What,  with  this  dozen  of 
rusty  muskets,  or  with  those  conspirators  whom  he 


TRIAL   OF  THOMAS   WALKER.  311 

exercised  ?  But  who  are  they  ?  They  are,  it  seems, 
"to  the  jurors  unknown,"  as  my  learned  friend  has 
called  them,  who  drew  ting  indictment,  and  he 
might  have  added,  who  will  ever  remain  unknown 
to  them.  But  has  Mr.  Walker  nothing  to  lose, 
like  other  men  who  dread  an  invasion  ?  He  has 
long  had  the  acquaintance  and  friendship  of  some 
of  the  best  men  in  this  kingdom,  who  would  be 
destroyed  if  such  an  invasion  should  take  place. 
Has  he,  like  other  men,  no  ties  of  a  nearer  descrip- 
tion ?  Alas,  gentlemen !  I  feel  at  this  moment 
that  he  has  many.  Mr.  Dunn  told  you  that  I  was 
with  Mr.  Walker,  at  Manchester;  and  it  enables 
me  to  say,  of  my  own  knowledge,  that  it  is  imj>os- 
sible  he  could  have  had  the  designs  imputed  to  him. 
I  have  been  under  his  roof,  where  I  have  seen  him 
the  husband  of  an  amiable  and  affectionate 
woman,  and  the  happy  parent  of  six  engaging 
children  ;  and  it  hurts  me  not  a  little  to  think  what 
they  must  feel  at  this  moment.  Before  prosecu- 
tions are  set  on  foot,  those  things  ought  to  be  con- 
sidered ;  we  ought  not,  like  the  fool  in  the  prov- 
erbs, to  scatter  firebrands  and  death,  and  say 
"Am  I  not  in  sport?"  Could  we  look  at  this 
moment  into  the  dwelling  of  this  unfortunate  gen- 
tleman, for  so  I  must  call  him,  I  am  ]>ersuaded  the 
scenes  would  distress  us;  his  family  cannot  but  be 
unhappy ;  they  have  seen  prosecutions  equally  un- 
just as  even  this  is,  attended  with  a  success  of 


312  SPEECH    OF   ME.    ERSKINE   ON   THE 

equal  injustice,  and  we  have  seen  those  proceed- 
ings, I  am  afraid  by  those  who  are  at  the  bottom 
of  this  indictment,  put  forward  for  your  imitation. 
I  saw,  to  my  astonishment,  at  Preston,  where,  as  a 
traveler,  I  called  for  a  newspaper,  that  this  im- 
maculate society  (the  Manchester  Church  and 
King  Club),  had  a  meeting  lately,  and  had  pub- 
lished to  the  world  the  toasts  and  sentiments  which 
they  drank ;  some  of  them  I  like,  some  of  them 
deserve  reprobation:  "The  Church  and  King;" 
very  well.  "The  Queen  and  Royal  Family;"  be 
it  so.  "The  Duke  of  York  and  the  Army;"  be 
it  so.  But  what  do  you  think  came  next  ? 

[Here  Mr.  Justice  Heath  interrupted  Mr.  Ers- 
kine,  by  saying,  "We  are  not  to  go  into  this,  of 
which  you  cannot  give  evidence."] 

Mr.  Erskine.  I  don't  know  what  effect  these 
publications  may  have  upon  the  administration  of 
justice:  why  drink  "The  Lord  Advocate  and  the 
Court  of  Justiciary  in  Scotland,"  just  when  your 
lordship  is  called  upon  to  administer  justice  accord- 
ing to  the  laws  of  England?  if  I  had  seen  "The 
King  and  his  judges  upon  the  northern  circuit" 
published  as  a  toast — 

Mr.  JusticeHeath.  You  know  you  cannot  give 
this  in  evidence. 

Mr.  Erskine.  Gentlemen,  considering  the  situa- 
tion in  which  my  clients  stand  at  this  moment,  I 
expressed  the  idea  which  occurred  to  me,  and 


TRIAL  OF   THOMAS   WALKER.  313 

which  I  thought  it  right  not  to  suppress ;  but  let 
it  pass ;  this  is  not  the  moment  for  controversy ; 
it  is  my  interest  to  submit  to  any  course  his  lord- 
ship may  think  proper  to  dictate ;  the  evidence  is 
more  than  enough  for  my  purpose ;  so  mainly  im- 
probable, so  contrary  to  everything  in  the  course 
of  human  affairs,  that  I  know  you  will  reject  it 
even  if  it  stood  unanswered ;  what  then  will  you 
say,  when  I  shall  prove  to  you  by  the  oaths  of  the 
various  persons  who  attended  these  societies,  that 
no  propositions  of  the  sort  insinuated  by  thin  wit- 
D6BB  ever  existed ;  that  no  hint,  directly  or  indi- 
rectly, of  any  illegal  tendency,  was  ever  whispered  ; 
that  their  real  objects  were  just  what  were  openly 
professed,  be  they  right  or  wrong,  be  they  wise  or 
mistaken,  namely,  reformation  in  the  constitu- 
tion of  the  House  of  Commons,  which  my  learned 
friend  admitted  they  had  a  right  by  constitutional 
means  to  promote.  This  was  their  object;  they 
neither  desired  to  touch  the  King's  authority,  nor 
the  existence  or  privileges  of  the  House  of  Ix>rds ; 
but  they  wished,  that  those  numerous  classes  of 
the  community,  who,  by  the  law  as  it  now  stands, 
are  excluded  from  any  share  in  the  choice  of  mem- 
bers to  the  Parliament,  should  have  an  equal  right 
with  others,  in  concerns  where  their  interests  are 
equal.  Gentlemen,  this  very  county  furnishes  a 
familiar  instance;  there  are,  I  believe,  at  least 
thirty  thousand  freeholders  in  Lancashire,  each  of 


314  SPEECH    OF    ME.    EKSKINE    ON    THE 

whom  has  a  vote  for  two  members  of  parliament ; 
and  there  are  two  boroughs  within  it,  if  I  mistake 
not,  Clithero  and  Newton,  containing  a  handful  of 
men  who  are  at  the  beck  of  two  individuals ;  yet 
these  two  little  places  send  for  themselves,  or  rather 
for  these  two  persons,  two  members  each,  which 
makes  four  against  the  whole  power  and  interest 
of  this  county  in  parliament,  touching  any  meas- 
ure, how  deeply  soever  it  may  concern  their  pros- 
perity. Can  there  be  any  offence  in  meeting 
together  to  consider  of  a  representation  to  parlia- 
ment, suggesting  the  wisdom  of  alteration  and 
amendment  in  such  a  system  ? 

Mr.  Justice  Heath.  There  can  be  no  doubt  but 
that  a  petition  to  parliament,  for  reform  or  any- 
thing else,  can  be  no  offence. 

Mr.  Erskine.  Gentlemen,  I  expected  this  inter- 
ruption from  the  learning  of  the  judge;  certainly 
it  can  be  no  offence,  and  consequently  my  clients 
can  be  no  offenders. 

Having  now  exposed  the  weakness  of  Dunn's 
evidence,  from  its  own  intrinsic  defects,  and  from 
the  positive  contradiction  every  part  of  it  is  to 
receive  from  many  witnesses,  I  shall  conclude  with 
the  still  more  positive  and  unequivocal  contradic- 
tion which  the  whole  of  it  has  received  from  Dunn 
himself.  You  remember  that  I  repeatedly  asked 
him  whether  he  had  not  confessed  that  the  whole 
he  had  sworn  to-day  was  utterly  false ;  whether  he 


TRIAL   OF   THOMAS   WALKER.  315 

had  not  confessed  it  to  be  so  with  tears  of  contri- 
tion, and  whether  he  had  not  kneeled  down  before 
Mr.  Walker,  to  implore  his  forgiveness.  My 
learned  friend,  knowing  that  this  would  be  proved 
upon  him,  made  a  shrewd  and  artful  observation 
to  avoid  the  effects  of  it ;  he  said  that  such  things 
had  fallen  often  under  the  observation  of  the  court 
upon  the  circuit,  where  witnesses  had  been  drawn 
into  similar  snares  by  artful  people  to  invalidate 
their  testimony.  This  may  be  true,  but  the  answer 
to  its  application  is,  that  not  only  the  witness  him- 
self has  positively  denied  that  any  such  snare  was 
laid  for  him,  but  the  witnesses  I  have  to  call,  both 
in  respect  of  number  and  credit,  will  put  a  total 
end  to  such  a  suggestion ;  if  I  had  indeed  but  one 
witness,  my  friend  the  Attorney-General  might  un- 
doubtedly put  it  to  you  in  reply,  whether  his  or 
mine  was  to  be  believed,  but  I  will  call  to  you, 
not  one,  but  four  or  five;  or,  if  necessary,  six 
witnesses,  above  all  suspicion,  in  whose  presence 
Dunn  voluntarily  confessed  the  falsehood  of  his 
testimony,  and,  with  tears  of  apparent  rej>entance, 
offered  to  make  any  reparation  to  these  injured 
and  unfortunate  defendants.  This  I  pledge  myself 
to  prove  to  your  satisfaction. 

Gentlemen,  the  object  of  all  public  trial  and 
punishment  is  the  security  of  mankind  in  social 
life.  We  are  not  assembled  here  for  the  purposes 
of  vengeance,  but  for  the  ends  of  justice;  to  give 


316     SPEECH  OF  MR.  ERSKINE  ON  THE 

tranquillity  to  human  life,  which  is  the  scope  of  all 
government  and  law ;  you  will  take  care,  therefore, 
how,  in  the  very  administration  of  justice,  you  dis- 
appoint that  which  is  the  very  foundation  of  its 
institution  ;  you  will  take  care  that  in  the  very 
moment  you  are  trying  a  man  as  a  disturber  of 
the  public  happiness,  you  do  not  violate  the  rules 
which  secure  it. . 

The  last  evidence  I  have  been  stating  ought  by 
itself  to  put  an  instant  end  to  this  cause.  I  remem- 
ber a  case,  very  lately,  which  was  so  brought  to  its 
conclusion,  where,  upon  a  trial  for  perjury  of  a 
witness  who  had  sworn  against  a  captain  of  a 
vessel  in  the  African  trade,  it  appeared  that  the 
witnesses  who  swore  to  the  perjury  against  the 
defendants,  had  themselves  made  deliberate  declar- 
ations which  materially  clashed  with  the  testimony 
they  were  giving.  Lord  Kenyon,  who  tried  the 
cause,  would  after  this  proceed  no  further,  and 
asked  me,  who  was  counsel  for  the  prosecution, 
whether  I  would  urge  it  further,  saying  emphati- 
cally, what  I  hope  every  judge  under  similar 
circumstances  will  think  it  his  duty  to  say  also, 
"No  man  ought  or  can  be  convicted  in  England, 
unless  the  judge  and  the  jury  have  a  firm  assur- 
ance that  innocence  cannot,  by  any  possibility,  be 
the  victim  of  conviction  and  sentence."  And  how 
can  the  jury  or  his  lordship  have  that  assurance 
here,  when  the  only  source  of  it  is  brought  into 


TRIAL  OF  THOMAS   WALKER.  317 

such  serious  doubt  and  question  ?  Upon  the  whole, 
then,  I  cannot  help  hoping  that  my  friend  the 
Attorney-General,  when  he  shall  hear  my  proofs, 
will  feel  that  a  prosecution  like  this  ought  not  to 
he  offered  for  the  seal  and  sanction  of  your  verdict. 
Unjust  prosecutions  lead  to  the  ruin  of  all  govern- 
ments. Whoever  will  look  back  to  the  history  of 

w 

the  world  in  general,  and  of  our  own  particular 
country,  will  be  convinced,  that  exactly  as  prose- 
cutions have  been  cruel  and  oppressive,  and  main- 
tained by  an  inadequate  and  unrighteous  evidence, 
in  the  same  proportion,  and  by  the  same  means, 
their  authors  have  been  destroyed  instead  of  being 
supported  by  them.  As  often  as  the  principles  of 
our  ancient  laws  have  been  departed  from  in  weak 
and  wicked  times,  so  often  the  governments  that 
have  violated  them  have  been  suddenly  crumbled 
into  dust.  And  therefore  wishing,  as  I  most  sin- 
cerely do,  the  preservation  and  prosperity  of  our 
happy  constitution,  I  desire  to  enter  my  protest 
against  its  being  supported  by  means  that  arc  likely 
to  destroy  it  Violent  proceedings  bring  on  the 
bitterness  of  retaliation,  until  all  justice  and 
moderation  are  trampled  down  and  subverted. 
Witness  those  sanguinary  prosecutions  previous  to 
the  awful  period  in  the  last  century,  when  Charles 
the  First  fell;  that  unfortunate  prince  lived  to 
lament  those  vindictive  judgments  by  which  his 
impolitic,  infatuated  followers  imagined  they  were 


318  SPEECH    OF    MR.    ERSKINE    ON    THE 

supporting  his  throne ;  he  lived  to  see  how  they 
destroyed  it;  his  throne,  undermined  by  violence, 
sunk  under  him,  and  those  who  shook  it  were 
guilty  in  their  turn,  such  is  the  natural  order  of 
injustice,  not  only  of  similar,  but  of  worse  and  more 
violent  wrongs ;  witness  the  fate  of  the  unhappy 
Earl  of  Stafford,  who,  when  he  could  not  be 
reached  by  the  ordinary  laws,  was  impeached  in 
the  House  of  Commons,  and  who,  when  still  beyond 
the  consequences  of  that  judicial  proceeding,  was 
at  last  destroyed  by  the  arbitrary,  wicked  man- 
date of  the  legislature.  James  the  Second  lived 
to  ask  assistance  in  the  hour  of  his  distress,  from 
those  who  had  been  cut  off  from  the  means  of  giv- 
ing it  by  unjust  prosecutions;  he  lived  to  ask  sup- 
port from  the  Earl  of  Bedford,  after  his  son,  the 
unfortunate  Lord  Russell,  had  fallen  under  the  axe 
of  injustice.  "I  once  had  a  son,"  said  that  noble 
person,  "who  could  have  served  your  Majesty  upon 
this  occasion,"  but  there  was  then  none  to  assist 
him. 

I  cannot  possibly  tell  how  others  feel  upon  these 
subjects,  but  I  do  know  how  it  is  their  interest  to 
feel  concerning  them;  we  ought  to  be  persuaded 
that  the  only  way  by  which  government  can  be 
honorably  or  safely  supported,  is  by  cultivating 
the  love  and  affection  of  the  people;  by  showing 
them  the  value  of  the  constitution  by  its  protec- 
tion ;  by  making  them  understand  its  principles 


TRIAL   OF   THOMAS   WALKER.  319 

by  the  practical  benefits  derived  from  them;  and 
above  all,  by  letting  them  feel  their  security  in  tlie 
administration  of  law  and  justice.  What  is  it  in 
the  present  state  of  that  unhappy  kingdom,  the 
contagion  of  which  fills  us  with  such  alarm,  that  is 
the  just  object  of  terror?  what,  but  that  accusa- 
tion and  conviction  are  the  same,  and  that  a  false 
witness  or  power  without  evidence  is  a  warrant  for 
death?  Not  so  here;  long  may  the  countries  dif- 
fer! and  I  am  asking  for  nothing  more,  than  that 
you  should  decide  according  to  our  own  whole- 
some rules,  by  which  our  government  was  estab- 
lished, and  by  which  it  has  been  ever  protected. 
Put  yourselves,  gentlemen,  in  the  place  of  the 
defendants,  and  let  me  ask,  if  you  were  brought 
before  your  country,  upon  a  charge  supjx)rted  by 
no  other  evidence  than  that  which  you  have  heard 
to-day,  and  encountered  by  that  which  I  have 
stated  to  you,  what  would  you  say,  or  your  chil- 
dren after  you,  if  you  were  touched  in  your  Arsons 
or  your  properties  by  a  conviction?  May  you 
never  be  put  to  such  reflections,  nor  the  country  to 
such  disgrace!  The  best  service  we  can  render  to 
the  public  is,  that  we  should  live  like  one  harmoni- 
ous family,  that  we  should  banish  all  animosities, 
jealousies,  and  suspicions  of  one  another;  and  that, 
living  under  the  protection  of  a  mild  and  impartial 
justice,  we  should  endeavor,  with  one  heart,  accord- 


320  FINDING   OF   THE   JURY. 

ing  to  our  best  judgments,  to  advance  the  freedom 
and  maintain  the  security  of  Great  Britain. 

Gentlemen,  I  will  trouble  you  no  further ;  I  am 
afraid,  indeed,  I  have  too  long  trespassed  on  your 
patience,  I  will  therefore  proceed  to  call  my 
witnesses. 


On  the  examination  of  the  witnesses,  to  the  matters  men- 
tioned by  Mr.  Erskine  in  his  speech,  the  witness  for  the 
Crown,  Thomas  Dunn,  was  so  entirely  contradicted,  that  Mr. 
Law  interposing,  in  the  manner  stated  in  the  preface,  the 
trial  ended,  and  Mr.  Walker  and  the  other  defendants  were 
acquitted. 


PROCEEDINGS 
AGAINST    CHARLES    BEMBRIDGE, 


FOR  A 


MISDEMEANOR. 


IN  Trinity  Term,  1783,  an  information  was  filed  by  the 
Attorney-General  against  Charles  Bembridge,  an  accountant 
in  the  pay-office,  charging  him  with  having  wilfully  and 
fraudulently  concealed  numerous  large  and  important  items 
which  were  a  charge  against  Lord  Holland,  a  paymaster, 
and  which  should  have  been  so  returned.  The  trial  came 
on  in  the  Court  of  King's  Bench,  July  18th,  1783.  Mr. 
Erskine,  though  of  counsel  for  the  defendant,  and  ]>artici- 
pating  in  the  trial,  did  not  address  the  jury,  the  argument 
being  reserved  for  Mr.  Bearcroft,  a  prominent  barrister  who 
appeared  in  many  important  trials  either  with  or  against 
Mr.  Erskine.  No  further  report  of  the  trial,  therefore,  is 
here  presented  than  the  charge  of  Lord  Mansfield  to  the 
jury,  from  which  the  reader  will  be  enabled  to  gain  a  clear 
idea  of  the  merits  of  the  case.  Following  this  will  be  found 
Mr.  Erskiue's  speech  on  the  motion  for  a  new  trial. 


21    B 


LOED  MANSFIELD'S   CHAEGE   TO   THE 
JUEY. 


GENTLEMEN  OF  THE  JURY  :  This  is  an  informa- 
tion against  the  defendant,  which  states,  that  the 
office  of  accountant,  in  the  paymaster's  office,  is  a 
place  of  important  public  trust  and  confidence, 
and  is  relative  particularly  to  the  passing  of  the 
accounts  of  paymasters  out  of  the  office,  as  well  as 
paymasters  in  office.  That  the  defendant  was  ap- 
pointed accountant  in  the  year  1776.  That  the 
accounts  of  my  Lord  Holland,  then  paymaster,  had 
been  finally  brought  ID,  in  the  year  1772,  before 
the  time  he  was  appointed  accountant.  That  from 
the  year  1776,  when  he  was  accountant,  down  to 
October  or  November,  1782,  he  concealed  will- 
fully, corruptly,  and  fraudulently,  from  the  auditor 
of  the  imprest,  a  variety  of  items,  which  were  a 
charge  upon  my  Lord  Holland,  amounting  in  the 
total,  to  the  sum  of  £48,799  10s.  lid.  From  this 
charge,  you  see,  there  are  two  propositions  for  you 
to  be  satisfied  of.  The  first  is,  that  this  place  of 
accountant  in  the  paymaster's  office,  is  a  place  of 
public  trust  and  confidence,  relative  to  the  passing 
the  accounts  of  the  paymasters  out  of  office,  that 


TRIAL   OF   CHARLES    BEM BRIDGE.  323 

is,  that  it  is  a  check  ii{x>n  those  who  pass  the 
account  of  a  paymaster  out  of  office,  that  they 
should  be  examined,  controlled,  and  surcharged 
before  the  auditor,  by  the  accountant;  that  is  the 
first  proposition  of  fact  necessary  for  you  to  be 
satisfied  of.  The  next  proposition  in  jxmit  of  fact 
necessary  t-»r  v»u  to  be  satisfied  of)  is,  thai  tbeM 
concealments  were  made  by  defendant,  Bern  bridge, 
corruptly  and  fraudulently.  If  you  are  satisfied 
of  these  two  facts,  you  are  then  warranted  to  find 
the  defendant  guilty  of  the  indictment,  in  point  of 
fact.  With  regard  to  the  law  of  the  case,  when 
I  come  to  state  that  to  you,  I  will  tell  you  all  I 
think  necessary  for  you  to  consider  upon  the 
subject. 

The  first  fact  is  with  regard  to  the  nature  and 
duty  of  this  office.  On  the  part  of  the  prosecu- 
tion, they  prove,  by  Mr.  Hughes  and  by  Mr.  Wig- 
glesworth,  two  of  the  deputy-auditors,  that  the 
business  of  the  office  in  passing  accounts  before 
them  is,  to  send  every  observation  they  make  to 
the  accountant;  and  from  the  accountant  they 
expect  a  solution,  an  explanation,  and  assistance; 
that  in  this  particular  case,  from  1776,  the  time 
that  defendant  was  accountant,  they  made  objec- 
tions to  him,  they  talked  to  him,  they  applied  to 
him,  and  they  considered  him  as  the  person  who 
was  to  answer  those  objections,  etc.  Besides  that, 
they  have  read  the  examination  of  the  defendant, 


324    LORD  MANSFIELD'S  CHAEGE  TO  THE  JURY 

upon  oath,  before  the  commissioners  of  accounts, 
in  which  he  expressly  says,  "that  he,  as  accountant, 
carries  on  and  makes  up  the  accounts  of  the  pay- 
masters after  they  are  out  of  office,  as  well  as  of 
those  of  the  paymasters  in  office."  They  farther- 
call  Mr.  Rose,  as  to  his  examination  before  the 
treasury,  and  there,  upon  a  question  being  put  to 
him,  he  says,  "he  knew  that  it  was  his  duty  to 
have  discovered  those  items."  Farther,  they  have 
produced  a  warrant  for  a  deduction  to  be  made  by 
the  executor  of  my  Lord  Holland,  of  the  sum  of 
£14,000  for  expenses  and  fees  attending  the  pass- 
ing of  those  accounts  of  Lord  Holland's,  in  which, 
the  fees  belonging  to  the  defendant  relative  to 
those  accounts,  is  £2,600,  and  to  his  clerk  £500. 
In  contradiction  to  this,  and  to  show  that  it  is 
not  the  duty  of  the  office,  they  have  first  cross-ex- 
amined Mr.  Hughes,  who  says,  that  in  the  case  of 
Mr.  Winnington,  Mr.  Ingram,  who  was  his  execu- 
tor, passed  the  account  and  was  permitted  by  Mr. 
Bangham,  who  did  ask  information  from  the 
accountant,  but  that  Mr.  Ingram,  himself,  and 
nobody  else,  passed  the  account  of  Mr.  Winnington  ; 
but,  afterwards,  the  accountant  had  the  fees  allow- 
ed upon  passing  those  accounts.  This  comes  out 
from  the  cross-examination  of  Mr.  Hughes,  for  Mr. 
Hughes  says,  he  personally  knows  of  no  such  in- 
stance since  that  time ;  but  they  have  called  Mr. 
Bangham,  who  has  been  a  clerk  in  the  pay-office 


ON  THE  TRIAL  OF  CHARLES  BEMBRIDGE.      3*25 

thirty-three  years,  and  he  gives  an  account  of  the 
duty  of  the  office,  that  makes  it  a  very  important 
office  indeed,  for  you  otaerve  the  long  lint  and  roll 
that  he  and  Mr.  Crawford  gave  of  the  duties  of 
the  Accountant-General,  and  at  last  he  concluded 
with  saying  that,  the  whole  business  almost  en- 
tirely lay  UJKJII  him,  for  he  keeps  all  the  accounts, 
extraordinaries  and  ordinaries,  abroad  and  at  home; 
but  as  to  this  particular  point,  the  duty  of  passing 
the  ex-paymaster's  account,  he  swears  expressly, 
that  in  his  opinion,  it  is  his  own  option,  whether 
he  will  or  will  not  make  up  the  accounts  of  the 
paymasters  out  of  office ;  and  he  says,  in  my  Lord 
Chatham's  case,  after  the  death  of  the  accountant, 
who  had  begun  to  pass  his  account,  that  the  rest 
of  them  were  passed  by  Mr.  Lamb,  and  not  by  the 
accountant. 

The  next  witness  was  Mr.  Crawford,  who  speaks 
to  the  same  effect,  and  enumerates  all  the  other 
articles  of  the  duty  of  the  accountant ;  but  as  to 
the  making  up  the  ex-paymaster's  account,  he 
denies  that  it  belongs  to  him,  and  that  there  was 
an  instance,  in  the  time  of  Lord  Chatham,  where 
it  had  been  otherwise. 

Thus  stands  the  evidence,  on  both  sides,  with 
regard  to  this  first  proposition,  the  nature  and 
importance  of  this  office,  relative  to  {nuking  the 
ex-paymaster's  accounts;  if  he  has  nothing  to  do 
with  passing  the  accounts  of  the  paymaster?  out 


326    LORD  MANSFIELD'S  CHARGE  TO  THE  JURY 

of  office,  then,  to  be  sure,  this  information  falls, 
because  the  basis  of  the  information  is,  that  it  is 
the  duty  of  his  office.  Supposing  you  to  be  of 
opinion,  it  is  the  duty  of  his  office,  then,  the  next 
consideration  is,  whether  this  is  a  wilful,  fraudulent, 
and  corrupt  concealment.  Lord  Holland  was  ap- 
pointed paymaster  in  the  year  1757,  and  went  out 
of  office  in  the  year  1765,  but  his  accounts  came 
down  to  the  midsummer  following ;  in  1772,  the 
last,  the  final  accounts  were  to  be  filed ;  what  was 
given  in  then  as  a  final  account,  he  says,  does  not 
mean,  that  no  items  might  not  be  added  to  it ;  at 
this  time,  there  are  in  the  books  of  the  pay-office, 
some  charges  to  Paris  Taylor,  which  are  not 
brought  in ;  observations  are  sent  from  the  auditor's 
office  to  the  defendant ;  he  is  called  upon,  repeat- 
edly, to  give  his  answers  and  explanations  upon 
these  observations ;  he  sees  them,  and  he  does  not 
say  a  word  with  regard  to  any  of  these  items. 

At  last  they  send  to  close  the  account ;  it  is  sent 
to  the  pay-office ;  in  October  or  November  he  is 
called  upon  again,  and  then  it  is  proved,  by  Mr. 
Wigglesworth,  and  by  Mr.  Hughes,  that  he  tells 
them  he  has  nothing  more  to  say  ;  the  books  go  to 
the  office  to  have  two  items,  making  up  thirteen 
hundred  odd  pounds,  inserted ;  the  defendant  tells 
them  he  has  nothing  more  to  do,  but  refers  them 
to  Mr.  Powell;  Mr.  Powell  was  the  accountant, 
and,  to  be  sure,  referring  them  to  Mr.  Powell  was 


ON  TUE  TRIAL  OF  CHARLES  BEMBRIDGE.       327 

saying  —  I  have  nothing  more  to  charge  thorn 
with,  I  have  no  farther  observations  to  make;  they 
are  referred  to  Mr.  Powell,  and  then  comes  the 
account  with  a  pencilled  balance  struck,  to  about 
sixty  odd  thousand  pounds,  and  the  two  items  that 
the  books  were  sent  to  have  inserted  in  them,  are 
not  inserted,  but  they  are  taken  into  the  balance. 
After  this  pencilled  balance  Ls  made  out,  notice  is 
given  that  the  treasury  were  to  have  the  accounts 
sent  to  them,  and  this  is  at  the  end  of  January,  or 
the  beginning  of  February;  the  book  being  sent 
back  for  the  sake  of  inserting  those  items  into  it, 
it  is  returned  to  the  auditor's  office,  and  it  had 
been  in  the  office,  unobserved,  for  nine  or  ten  days; 
at  last,  upon  looking  into  it,  they  find,  between 
the  two  items  inserted  and  the  last  passed  item,  a 
number  of  items,  amounting  to  £48,700  inserted 
as  a  charge  upon  Lord  Holland.  To  fix  this  as 
voluntary  upon  the  defendant,  they  use  several 
facts  and  observations ;  the  first  is,  that  every  one 
of  the  items  appeared  in  the  public  books,  except- 
ing twenty  thousand  odd  hundred  pounds,  all  in 
small  items ;  the  long  dependency  of  the  account 
gave  the  defendant  an  opportunity  to  examine 
everything  ;  but  the  strength  of  the  charge  here  is, 
that  the  defendant  being  examined  before  the  Lords 
of  the  treasury,  owned,  that  for  a  long  time  before 
the  account  of  the  pencilled  balance  was  sent  back, 
which  account  did  not  contain  any  of  those  items, 


328    LOKD  MAXSFIELD'S  CHARGE  TO  THE  JURY 

that  he  know  of  them  all.  Now,  with  whatever 
view,  whether  in  aid  of  Mr.  Powell,  or  for  any 
other  improper  purpose,  if  you  are  satisfied  it  was 
a  fraudulent  concealment,  and  to  be  sure,  many 
purposes  might  be  answered  by  the  concealment 
—it  lessens  the  balance  demanded  by  the  public 
—it  could  turn,  in  a  variety  of  ways,  for  the  bene- 
fit of  the  accountant ;  but  to  convict  the  defendant 
of  a  crime,  it  is  necessary  that  you  should  be  satis- 
fied that  it  is  wilfully  and  fraudulently  done ;  in 
short,  that  he  does  not  do  that  which  it  was  his 
duty  to  do,  in  disclosing  this.  If,  upon  these  two 
facts  you  are  satisfied  that  the  charge  is  made  out, 
with  regard  to  the  law  of  the  case,  I  have  very 
little  difficulty  in  saying  what  my  opinion  is ;  I 
have  not  a  particle  of  doubt,  that  where  a  man  has 
an  office,  created  by  the  King's  letters  patent,  im- 
mediately or  derivatively,  which  is  of  important 
trust  and  consequence  to  the  public,  that  for  the 
violation  of  that  office,  he  is  as  much  indictable  as 
any  magistrate  or  officer  that  has  been  alluded  to. 
It  is  an  office  the  duty  of  which  the  public  are  in- 
terested in,  and  I  have  no  manner  of  doubt,  but 
upon  principles,  there  is  no  want  of  any  precedent 
of  the  same  kind  as  this;  I  have  no  doubt  a  wilful 
violation  of  the  duty  of  that  office  is  indictable, 
but  if  it  is  not  indictable,  the  objection  appears 
upon  the  record,  and  judgment  will  be  arrested. 
Therefore  if  you  are  satisfied  in  both  of  the  points, 


ON  THE  TRIAL  OF  CHARLES  BEM  BRIDGE.        329 

you  will  find  the  defendant  guilty;  if  you  are  not 
satisfied  in  either  of  them,  then  you  ought  to 
acquit  him. 


The  jury  withdrew  for  a  short  time,  and  then  returned 
into  court,  with  a  verdict,  fiudiug  the  defendant  guilty. 


PROCEEDINGS   ON  THE   MOTION    FOR  A  NEW 
TRIAL. 

The  motion  for  a  new  trial,  in  the  case  of  the  KINO  vs. 
BEMRRIDGE,  came  on  to  be  argued,  November  10th,  1783, 
and  was  opened  by  Mr.  Bearcroft  and  Mr.  Scott,  afterward 
Lord  Eldon.  These  gentlemen  were  succeeded  by  Mr. 
Erskine  in  the  following  speech : 


SPEECH  OF  ME.  ERSKINE, 

ON   THE  MOTION   FOE  A  NEW  TRIAL  IN  THE   CASE   OP 
CHARLES     BEMBRIDGE. 

My  duty  at  present,  according  to  the  common 
practice  of  the  court,  I  conceive  to  be,  to  offer 
grounds  to  your  lordships  for  having  a  review  of 
this  verdict ;  and  I  shall  not  enter  at  all  into  the 
punishment,  which  your  lordships,  in  your  discre- 
tion— 

Lord  Mansfield.  You  had  better  take  the  whole, 
as  I  told  Mr.  Scott. 

Mr.  ErsTcine.  Then  I  shall  first  take  the  libertv, 

«/ ' 

notwithstanding  how  much  has  been  said  already, 
to  remind  your  lordship  of  the  charge  which  this 
information  contains  against  the  defendant,  because 
your  lordship  is  certainly  not  inquiring  now 
whether  the  conduct  of  Mr.  Bembridge  has  been, 
upon  the  whole,  that  of  a  good  subject, — under 
the  particular  circumstance  in  which  he  stood,  and 
in  which  he  acted  as  accountant  of  the  pay-office, 
— but  whether  he  be  guilty  or  not  guilty  of  the 
particular  criminal  charge  made  against  him  by 
this  information. 

My   lord,  the   information   makes  this  positive 


A  NEW  TRIAL  IN  KING  VS.  BEMBRIDGE.        331 

averment,  "that  the  place  and  employment  of 
accountant,  in  the  office  of  the  paymaster,  is  a 
place  of  great  public  trust  and  confidence,  touching 
the  making  up  the  accounts  of  the  paymaster- 
general,  and  the  adjusting  and  settling  of  the  same 
with  live  auditor  of  the  imprest."  Your  lordship, 
at  the  trial,  told  the  jury,  in  the  most  precise  and 
unequivocal  terms,  that,  unless  that  averment  were 
substantiated  by  the  evidence,  the  information,  of 
course,  fell  to  the  ground,  for  that  all  the  other 
propositions,  and  averments  contained  in  it  were 
merely  corollary  to  that  first  proposition,  and  that 
if  the  foundation  were  removed,  they,  of  course, 
were  taken  away  ;  for,  undoubtedly,  no  man  could 
be  guilty  of  any  misprision,  unless  the  thing  which 
the  other  person  had  done,  and  which  he  ought  to 
have  discovered,  were  part  of  his  own  duty.  Now, 
I  conceive,  that  the  meaning  of  this  averment  in 
the  information  (if  it  has  any  meaning  at  all),  is 
this :  that  the  place  and  office  of  accountant  to  the 
paymaster  is  an  official  check,  provided  by  the 
wisdom  and  discretion  of  the  government,  upon 
paymasters  both  in  and  out  of  office,  against  those 
frauds  which  might  be  committed  by  persons  hav- 
ing such  immense  sums  of  the  public  money  in 
their  hands,  and  for  such  long  periods.  It  is  not 
enough  to  entitle  the  Crown  to  a  verdict  in  this 
cause,  that  it  has  been  the  custom  of  the  account- 
ants to  make  up  these  accounts,  but  that  it  is  their 


332  ME.  ERSKINE'S  SPEECH  ON  THE  MOTION  FOR 

official  duty,  and  if  it  be  their  official  duty,  so  as 
to  make  the  breach  of  it  an  indictable  offence,  it 
must  be,  as  I  said  before,  an  official  check,  consti- 
tuted by  the  public  for  that  express  purpose; 
that  the  public  intrust  him  with  the  duty,  and 
that  the  paymaster  is  not  himself  intrusted  and 
responsible  for  the  rectitude  of  his  accounts,  but 
that  another  man  is  intrusted  with  that  check; 
that  the  public  looks  to  him,  and  him  alone,  for  a 
check  upon  the  duty  of  the  paymasters. 

If,  then,  that  averment  be  as  I  have  taken  the 
liberty,  in  point  of  law,  to  suppose  it,  it  would  follow, 
as  a  necessary  consequence,  that  if  it  had  turned  out 
in  point  of  fact,  that  Mr.  Powell,  without  any  know- 
ledge in  Mr.  Bembridge,  had  been  guilty  of  a  fraud 
upon  the  public,  Mr.  Bembridge  would  have  been 
equally  subject  to  an  information,  at  the  suit  of 
the  Crown,  for  suffering  that  public  loss,  arising 
from  the  fraud  of  another's  doing  that  duty  which 
the  public  imposed  upon  him;  and  I  contend,  that 
it  is  impossible  to  say,  that  Mr.  Bembridge  is 
guilty  of  any  misprision  in  point  of  law,  although 
he  knew,  in  point  of  fact,  of  those  items  being 
held  back,  unless  it  would  have  been  criminal  in 
Mr.  Bembridge  to  have  suffered  Mr.  Powell  to  act 
at  all,  and,  unless  he  would  have  been  liable  to  an 
information,  for  the  wilful  omission  in  Mr.  Powell, 
although  he  had  not  known  of  any  such  omission ; 
for  if  the  public  look  upon  Mr.  Bembridge's  office 


A  NEW  TRIAL  IN  KING  VS.  BEHBRIDGE.      333 

as  a  check  upon  the  office  of  the  paymaster,  it 
would  have  been  a  crime  in  Mr.  Bembridge  to 
have  suffered  Mr.  Powell  to  do  it  at  all ;  and  if  it 
had  been  a  crime,  then  all  pay masters,  and  all 
accountants  have  been  in  the  habit  of  committing 
it ;  for  it  is  in  evidence,  that  Lord  Chatham  and 
Mr.  Wilmington  made  up  their  accounts  by  par- 
ticular j>erson8,  employed  by  themselves,  and  not 
by  the  accountants. 

Then,  if  the  averment  be  as  I  have  stated  it, 
that  this  is  the  official  duty  of  the  accountant,  and 
that  the  information  charges  it  to  be  his  official 
duty,  and  so  much  his  duty,  as  to  render  it  crimi- 
nal,— as  Mr.  Rose  thought,  for  he  went  so  far  in 
his  evidence, — as  to  make  it  criminal  in  Mr.  Bern- 
bridge,  to  intrust  Mr.  Powell  to  do  it,  then  to 
establish  such  an  averment,  the  evidence  must  go 
the  whole  length,  as  your  lordship  laid  down  the 
law  to  the  jury,  it  must  go  the  whole  length  un- 
equivocally, to  establish  this  proposition,  that  Mr. 
Bembridge  was  bound,  at  all  events,  to  do  that 
duty  to  the  public  himself,  which,  in  point  of  fact, 
was  done  by  Mr.  Powell,  and,  therefore,  was 
responsible,  at  all  events,  whether  he  had  been 
guilty  of  this  wilful  misprision  or  not. 

The  next  material  consideration,  therefore,  is,  to 
see  how  the  evidence  does  sup|>ort  that  averment. 
Your  lordship  has  had  nothing  of  an  original 
nature  and  institution  of  this  office  laid  before  you, 


334    ME.  ERSKINE'S  SPEECH  ON  THE  MOTION  FOR 

and  it  is  surprising  to  me,  that  when  the  gist  of 
this  information  was  the  particular  official  duty  of 
a  man  in  a  public  office,  and  one  of  the  most  im- 
portant public  offices  in  this  country,  that  the 
officers  of  the  crown,  coming  into  a  court  of  justice 
with  a  criminal  charge,  were  not  able  to  show  to 
your  lordship  any  one  document,  any  one  instru- 
ment of  appointment,  any  one  record,  anything,  in 
short,  written  to  establish  his  duty,  but  are  obliged 
to  trust  to  the  loose  opinions  of  witnesses,  who  are 
called  to  support  their  cause.  There  is  nothing 
before  the  court  from  which  your  lordship  can  see 
what  is  the  official  duty  of  the  accountant ;  there 
is  nothing  before  the  court  to  lead  your  lordships 
to  think  that  he  is  placed  there  as  a  check  upon 
the  ex-paymaster  by  the  discretion  of  the  govern- 
ment; but  the  whole  proof  arises  upon  the  testi- 
mony of  witnesses.  I  agree  with  Mr.  Scott,  that 
that  evidence,  so  far  from  substantiating  that  pro- 
position, proves  the  direct  contrary,  and  the  very 
first  and  most  material  witness  called  on  the  part 
of  the  prosecution,  entirely  overturned  the  first 
averment  in  the  information.  Mr.  Hughes  stated, 
that  he  was  sent  to  Mr.  Bembridge  by  the  auditor 
of  the  imprest,  after  having  written  a  letter  with- 
out any  effect ;  that,  in  the  very  first  instance  of 
his  application  to  Mr.  Bembridge,  he  was  referred, 
by  him,  to  Mr.  Powell.  What  would  have  been 
the  answer  of  the  auditor  of  the  imprest,  or  of  his 


A  NEW  TRIAL  IN  KING  V8.  BEMBRIDGE.          335 

deputy;  if  the  observations  I  have  made  to  the 
court  be  well  founded  ?  for,  if  I  am  right  in  saying, 
that  if  Mr.  Bembridge  be  criminal  in  this  wilful 
misprision,  taking  that  wilful  misprision  to  be 
proved,  he  must  likewise,  if  the  first  averment  be 
true,  have  been  criminal  for  Mr.  Powell's  guilt, 
even  if  he  had  not  known  it ;  because  he  would 
have  been  criminal  by  intrusting  to  another  per- 
son that  which  it  was  his  own  duty  to  fulfill.  If 
that  be  so,  how  was  it  possible  for  Mr.  Hughes  to 
say  to  him  what  he  did  ?  Pie  would  have  said  to 
him  as  Mr.  Rose  did,  are  you.  aware  that  we  are 
entitled  to  call  upon  you  for  these  accounts  ?  But 
no ;  in  the  very  first  instance,  and  at  least  two  or 
three  times  afterwards,  they  went  to  Mr.  Powell ; 
they  corresponded  with  Mr.  Powell,  Mr.  Powell 
considered  it  as  his  own  duty,  he  never  referred 
them  back  again  to  Mr.  Bembridge ;  the  auditor 
of  the  imprest  never  went  back  again  to  Mr.  Bem- 
bridge, but  the  whole  was  conducted  between  them 
and  Mr.  Powell ;  this  clearly  shows  out  of  the 
mouth  of  that  witness,  that  he  himself,  at  that 
time,  whatever  new  lights  he  might  have  had  ujxm 
the  subject  before  he  came  into  court,  that  he  did, 
at  that  time,  believe  it  to  be  the  duty  of  Mr.  Pow- 
ell, and  not  of  Mr.  Bembridge.  He  said  that  Mr. 
Powell,  as  executor  to  Lord  Holland,  was  making 
up  the  accounts ;  he  referred  him  to  Mr.  Powell, 
as  a  person  responsible  for  them,  and  there  was  no 


336  ME.  EESKINE'S  SPEECH  ON  THE  MOTION  FOE 

answer  made,  either  by  Mr.  Hughes,  at  that 
time,  or  by  Lord  Sounds,  telling  Mr.  Bridge,  that 
he  was  the  man  responsible,  and  not  Mr.  Powell, 
to  whom  he  had  referred  them ;  the  evidence  of 
Mr.  Hughes  seems  to  me  to  go  a  great  deal  farther, 
for  he  states  a  case  that  is  absolutely  incompatible 
with  the  averment  in  the  information ;  he  says, 
Mr.  Ingram  was  the  executor  of  Mr.  Winnington, 
who  was  paymaster,  that  as  such  he  had  the  books 
delivered  to  him  from  the  pay-office  to  make  up  his 
accounts,  and  the  witness  added  :  I  made  them  up, 
and  they  were  delivered  to  the  auditor ;  and,  upon 
his  cross-examination,  he  said :  Ingram  had  leave 
from  Bangham,  the  deputy-auditor,  to  take  the 
book,  and  that  he  had  a  power  over  it  as  executor. 
Will  your  lordship,  then,  permit  me  only  to  call 
the  attention  of  the  court  to  this?  If  these  be 
the  books  which  contain  the  paymasters'  accounts, 
and  for  which  the  accountant  is  answerable,  how 
came  the  auditor  of  the  imprest  to  deliver  them  to 
Mr.  Ingram,  without  any  order  from  the  account- 
ant? It  seems  a  strange  proposition,  that  if  an 
accountant  in  the  pay-office,  and  it  is  a  strange  sort 
of  presumption  that  neither  that  officer,  nor  any 
of  his  predecessors,  ever  knew  anything  of  their 
duties ;  if  the  accountant,  I  say,  had  conceived 
himself  bound  to  make  up  these  accounts,  and  was 
answerable  for  their  rectitude,  how  should  it  have 
been  in  the  power  of  the  auditor  to  put  them  into 


A  NEW  TRIAL  IN  KING  V8.  BEMBRIDGE.        337 

any  other  hands  ?  The  information  charges,  that 
it  is  the  duty  of  the  accountant  to  make  up  these 
accounts  with  the  auditor  of  the  imprest ;  and  it 
would  therefore  have  been  a  high  breach  of  trust 
in  that  auditor,  knowing  it  to  be  the  duty  of  the 
accountant  to  make  up  these  books,  and,  knowing 
that  he  was  criminally  responsible,  either  for  will- 
ful misprisions,  or  even  for  mistakes  in  them,  who- 
ever made  them  up ;  it  would,  I  say,  have  been 
criminal  in  him  to  have  delivered  them  up  to  any 
person  but  the  accountant. 

The  witness  swore  that  the  deputy-auditor  deliv- 
ered the  books  to  him,  and  that  he  made  up  the 
accounts  and  delivered  the  books  back  again. 
Now,  how  can  the  accountant  be  responsible  for 
an  act,  which  it  was  not  in  his  power  to  prevent, 
unless  the  paymaster  gave  him  leave  to  do  it  ?  If 
Ingram  had  a  right  to  those  books,  as  the  executor 
of  Wilmington,  demanded  them  as  executor,  and 
received  from  the  auditor  as  executor ;  if  he,  the 
witness,  made  up  those  accounts,  and  delivered 
them  to  him,  without  any  communication  with  the 
accountant,  how  can  the  accountant  be  criminal 
for  not  doing  that  which  another  man  had  a  right 
to  put  out  of  his  power  to  do  ?  It  is  not  at  all 
immaterial  what  Mr.  Bearcroft  stated,  respecting 
the  late  act  of  Parliament,  which  seems  to  show 
the  sense  of  the  legislature,  that  these  books  were 
not  formerly  considered  as  the  property  of  the 
22  B 


338  MR.  ERSKINE'S  SPEECH  ON  THE  MOTION  FOE 

pay-office,  nor  as  public  books,  but  as  the  property 
of  the  paymaster,  whose  accounts  were  contained 
in  them ;  and  therefore,  seeing  the  inconvenience 
which  arose  from  that,  they  made  the  law  other- 
wise, for  the  future,  and  enacted  that  the  books 
should  be  the  property  of  the  public,  and  should 
not  be  taken  out  of  the  pay-office. 

Surely,  then,  the  first  proposition  in  the  informa- 
tion is  not  maintained,  even  on  the  evidence  for 
the  crown ;  and  your  lordship  will  recollect,  like- 
wise, that  we  called  a  witness  who  confirmed 
Hughes  in  his  testimony,  with  respect  to  the 
accounts  of  Lord  Chatham ;  viz.,  that  they  were 
made  up  by  a  person  appointed  by  himself,  with- 
out any  communication  with  the  officers  of  the 
pay-office ;  and  he  said  it  was  in  the  power  of  the 
ex-paymaster  to  make  up  his  accounts  by  any 
private  hands  he  thought  fit.  Where,  then,  is  the 
evidence  to  be  found  that  is  to  confirm  this  first 
proposition  ?  Where  is  it  to  be  found  except,  I 
shall  presently  remark,  out  of  the  mouth  of  the 
defendant,  Mr.  Bembridge  himself  which  was  the 
great  pressure  at  the  trial  ?  Suppose  the  defendant 
had  not  been  examined,  either  by  the  commissioners 
of  accounts,  or  the  lords  of  the  treasury  ;  supposing 
Mr.  Bembridge  not  to  have  been  examined  at  all ; 
and  that  his  confession  had  been  entirely  out  of 
the  case,  it  would  have  then  been  impossible,  for  a 
moment,  to  have  said  that  the  first  proposition  in 


A  NEW  TRIAL  IX  KIXO  VS.  BEMBRIDGE.      o39 

the  information,  upon  which  all  the  others  depend, 
had  been  substantiated,  localise  it  entirely  dej>ends 
upon  the  evidence  of  Hughes  and  Wigglesworth 
Ixrtli  agreeing  in  that  proposition,  namely,  that 
though  in  point  of  fact  the  accountant  hath  often 
made  up  these  accounts,  yet  that  it  was  in  the 
power  of  the  ex-paymaster  to  put  his  own  accounts 
into  private  hands,  a  proposition  utterly  inconsist- 
ent with  its  being  the  duty  of  the  accountant. 

The  matter  then  to  be  considered  is,  how  the 
defendant  Mr.  Bembridge's  testimony  weighs 
against  himself;  whether  it  be  so  unequivocal,  so 
clear,  and  precise  an  admission  of  his  duty,  as  shall 
be  taken  to  be  decisive  against  him,  notwith- 
standing the  witnesses,  even  on  the  part  of  the 
prosecution,  carry  the  testimony  the  other  way : 
now  before  the  commissioners  of  accounts,  Mr. 
Bembridge  admitted  nothing  like  that. 

Mr.  Juxtice  Wi/les.  Was  his  examination  before 
the  commissioners  of  accounts  upon  oath  or  not? 

Mr.  Sol.- Gen.    Upon  oath. 

Mr.  Erskine.  I  hoj>e  that  the  few  observatipns 
I  have  made,  go  the  length  of  establishing  this 
proposition ;  that  if  Mr.  Bembridge's  evidence 
were  out  of  the  question  ;  if  there  were  nothing  to 
be  taken  against  himself  from  his  own  admission, 
there  is  not  sufficient  matter  to  convict  him  of  the 
crime  charged  by  this  information ;  because  the 
first  averment  falling  to  the  ground,  all  the  other 


340  MR.  ERSKINE'S  SPEECH  ON  THE  MOTION  FOR 

propositions,  which  are  merely  corollary,  must  fall 
to  the  ground  likewise.  Mr.  Bembridge  was  not 
asked  by  the  commissioners  of  the  public  accounts, 
whether  it  was  his  duty  to  make  up  the  accounts 
of  the  paymasters  out  of  office,  as  well  as  the  ac- 
counts of  the  paymasters  in  office ;  he  was  asked 
no  such  question,  and  it  is  impossible  that  a  man's 
answer  can  be  taken  to  extend  -beyond  the  limit 
of  the  question  put  to  him ;  and  your  lordship  will 
never  take  an  admission  of  that  sort  in  a  case 
where,  if  a  man  had  any  criminality,  he  would  have 
been  earnest  to  conceal  it,  and  where  no  man  could 
have  bound  him  to  reveal  it;  and  it  is  decisive 
that  he  did  not  conceive  himself  in  his  own  heart 
to  be  guilty,  otherwise  he  would  have  held  his 
tongue.  If  he  had  thought  any  of  these  answers 
he  gave,  would  have  gone  to  criminate  him,  here  or 
elsewhere,  most  unquestionably  he  would  not  have 
given  them ;  his  admissions,  therefore,  proved  the 
idea  he  had  of  the  rectitude  of  his  own  conduct. 
The  account  he  gave  was,  that  as  accountant  of  the 
payt-office,  he  carried  on  and  made  up  the  accounts 
of  paymasters,  not  that  it  was  his  duty  to  do  so. 

Lord  Mansfield.  What  was  the  question  upon 
the  examination  ? 

Mr.  Chamber  lay  ne.  He  gives  in  his  examina- 
tion upon  oath ;  it  is  a  narrative ;  there  are  no 
questions. 

Mr.  Erskine.     The  words  are,    "That  he  car- 


A  NEW  TRIAL  IN  KING  V8.  BEMBRIDGE.        341 

ries  on  and  makes  up  the  accounts  of  the  pay- 
masters, after  they  are  out  of  oflice,  as  well  us 
those  of  the  paymasters  in  oflice."  He  does  not 
say,  that  he  does  this  as  accountant ;  he  says,  in 
the  outset,  undoubtedly,  that  he  is  accountant ;  he 
is  called  before  the  commissioners  of  accounts  as 
accountant  of  the  pay-office,  and  he  describes)  him- 
self to  be  accountant ;  but  when  he  gives  in  this 
narrative,  he  says  he  carries  on  and  makes  up  the 
accounts  of  paymasters  in,  as  well  as  out  of  office ; 
that  is,  that  in  point  of  fact,  he  does  it ;  not  that 
it  is  his  official  duty  to  do  so ;  not  that  he  could  be 
indicted  if  he  did  not  do  it ;  for  this  averment  goes 
so  far  as  to  maintain  that  if  Mr.  Bembridge  had 
refused  to  make  up  these  accounts,  he  would  have 
been  subject  to  an  information  for  that  refusal. 
Now,  all  that  he  says  is,  that  he  carries  on  and 
makes  up  these  accounts.  He  says,  true,  for  he 
had  carried  on  and  made  up  the  accounts  of  other 
paymasters  out  of  office  ;  but  as  it  is  in  the  jx)wer 
of  any  paymaster  out  of  office,  to  entrust  the  mak- 
ing up  those  accounts  to  any  other  person  out  of 
the  office,  or  to  have  left  it  to  be  done  by  his  execu- 
tor at  his  death,  then  it  is  not  the  duty  of  the 
accountant ;  because  that  never  can  be  the  duty  of 
the  accountant  which  another  man  can  prevent 
him  from  doing.  And  the  whole  evidence  goes 
to  establish  the  proposition,  that  in  point  of  fact, 
other  paymasters  have  made  up  their  accounts  by 


342  MR.  EBSKINE'S  SPEECH  ON  THE  MOTION  FOR 

other  hands;  and  that  the  auditor  has  had  the 
books,  without  any  interference  with  the  account- 
ant. 

Then,  if  Mr.  Bembridge's  examination  may  be 
taken  consistent  with  his  own  innocence,  your  lord- 
ship will  surely  not  wrest  it  to  convict  him ;  you 
will  not  take  a  voluntary  confession  of  any  man 
conceiving  that  he  was  not  drawing  himself  into  a 
snare,  in  a  sense  to  operate  to  his  conviction,  if  it  can 
possibly  be  made  consistent  with  his  innocence;  if  it 
can  be  taken  in  any  possible  sense  consistent  with 
his  innocence,  though  not  the  most  obvious  one, 
most  undoubtedly  your  lordship  will  adopt  that 
construction ;  and  it  seems,  too,  with  great  submis- 
sion to  the  court,  to  be  perfectly  consistent  with  it, 
for  Mr.  Bembridge  did  make  up  the  accounts  of 
several  paymasters,  though  not  of  Lord  Holland. 
And  why  did  he  not  make  up  the  accounts  of  Lord 
Holland?  Because  Lord  Holland  had  put  those 
accounts  into  other  hands;  and  the  information 
does  not  state  that  Mr.  Bembridge  ever  made  up 
those  accounts,  nor  does  it  state  that  it  was  his 
duty  to  have  made  up  those  accounts;  it  only 
states  that  it  was  his  duty  to  adjust  and  make  up 
those  accounts  with  the  auditor  of  the  imprest; 
which  may  be  thus :  it  was  his  duty,  if  he  was 
ordered  to  do  it ;  it  was  his  duty,  if  he  undertook 
it;  it  was  his  duty,  if  the  paymaster  had  imposed 
it  upon  him;  and  if  it  had  appeared  in  point  of 


A  NEW  TRIAL  IN  KING  V8.  BEMBKIDGE.          343 

fact,  that  he  had  hud  the  making  up  of  Lord  Hol- 
land's accounts  inijxKed  ujxm  him,  then,  taking  it 
to  be  his  duty  in  point  of  law,  and  having  it  im- 
posed upon  him,  it  might  be  a  wilful  misprision. 
But  the  information  does  not  make  any  such 
charge;  it  states  that  the  office  of  accountant,  in 
the  paymaster's  office,  is  a  place  of  important  pub- 
lic trust  and  confidence,  and  is  relative  particularly 
to  the  passing  the  accounts  of  paymasters  out  of 
office,  as  well  as  paymasters  in  office.'  It  then 
states  that  Lord  Holland  went  out  of  office ;  that 
John  Powell,  being  then  accountant,  made  up  and 
delivered  the  account  of  Lord  Holland  to  the 
auditor  of  the  imprest;  that  Mr.  Bembridge  suc- 
ceeded as  accountant,  and  that  it  was  his  duty  to 
disclose  certain  items  omitted  in  the  account  by 
Mr.  Powell.  But  if  Mr.  Bembridge  never  was 
charged  with  making  up  this  account,  and  it  was 
not  his  duty  to  make  it  up,  this  narrative,  upon 
his  examination  before  the  commissioners  of 
accounts,  seems  perfectly  consistent  with  his 
innocence,  for  it  only  says  this:  I  do  make  up 
these  accounts ;  but  suppose  he  had  gone  farther, 
and  had  said,  it  is  the  duty  of  the  accountant  to 
make  up  these  accounts,  and  pass  them  with  the 
auditor  of  the  imprest ;  that  is  to  say,  which  must 
be  implied  from  the  whole  examination,  if  the  pay- 
master, who  is  the  head  of  the  office,  chooses  to 
order  it,  then  only  it  becomes  his  official  duty,  and 


344  ME.  ERSKINE'S  SPEECH  ON  THE  MOTION  FOB 

then  taking  upon  him  de  facto  to  fulfill  it,  I  admit 
he  is  responsible. 

Most  unquestionably,  if  a  man  takes  upon  him- 
self the  doing  of  anything  in  which  the  public  has 
an  interest,  and  is  guilty  either  of  a  wilful  omis- 
sion, or  of  any  neglect  in  the  performance  of  it,  he 
cannot  say  then  that  it  was  not  his  official  duty, 
because  he  has  taken  it  upon  himself,  and  the  pub- 
lic trusts  him  upon  his  assumption  of  the  trust ; 
but  in  this  case,  neither  the  information  charges, 
nor  would  the  evidence  have  warranted  the  charge 
that  Mr.  Bembridge  was  ever  directed  to  take 
upon  him  the  adjusting  and  settling  this  account, 
as  the  accountant  of  the  pay-office,  or  that  he  ever 
took  it  upon  himself. 

It  was  entrusted  to  Mr.  Powell  in  virtue  of  his 
office.  Mr.  Powell  'made  it  up.  Mr.  Powell  de- 
livered it  to  the  auditor  of  the  imprest ;  and  the 
only  charge  against  Mr.  Bembridge  is,  the  conceal- 
ing these  omissions  which  the  information  only 
charges  to  have  been  made  by  Mr.  Powell. 

The  examination  before  the  lords  of  the  treasury 
seems  not  to  go  much  farther  than  that  before  the 
commissioners  of  accounts,  for  it  applies  chiefly  to 
the  second  part  of  the  information ;  viz :  to  the 
willful  concealment,  more  than  to  the  duty  of  his 
office.  It  says  he  was  perfectly  apprized  of  these 
particular  articles,  long  before  the  pencil  balance 
was  drawn  out ;  but  it  says  he  left  it  to  Mr.  Powell. 


A  NEW  TRIAL  IN  KING  VS.  B  EM  BRIDGE.         345 

It  is  true,  be  said  it  was  the  duty  of  the  account- 
ant to  make  up  the  accounts;  but  that  could  only 
be  if  he  was  ever  directed  by  the  paymaster,  or 
had  ever  charged  himself  to  make  them  out;  in 
that  case  it  is  admitted  to  have  been  his  duty,  but 

V     * 

if  the  paymaster,  who  is  the  head  of  that  office, 
does  not  direct  the  accountant  to  make  it  up,  and 
if  lie  chooses  to  trust  a  private  individual,  and 
that  private  individual  has  a  right  to  take  away 
those  books,  without  the  leave  of  the  accountant, 
and,  as  Mr.  Bearcroft  has  truly  observed,  might 
maintain  an  action  of  trover,  against  him,  if  he 
detained  them,  then  how  can  it  be  said  that  this 
officer  is  the  official  check,  provided  by  the  wis- 
dom of  government  over  a  paymaster's  accounts, 
and  is  responsible  for  all  the  errors  contained  in 
them?  Your  lordship  has  nothing  in  support  of 
the  charges  in  this  information  from  any  written 
document ;  from  any  patent  of  office ;  from  any 
matter  of  record ;  it  all  rests  upon  parol  evidence, 
the  whole  of  which  concurs  in  maintaining  a  pro- 
position directly  the  contrary  of  that  which  it  is 
necessary  t'«»r  tin-  pn»-»-<-utnr  t<>  maintain  befim  In- 
can  be  entitled  to  hold  this  verdict. 

One  argument  more  has  been  pressed  into  the 
service  upon  this  occasion,  to  show  that  this  is  the 
official  duty  of  Mr.  Bembridge,  and  to  show  that 
he  was  the  officer  looked  to  by  the  public  for  offi- 
cially making  up  and  adjusting  these  accounts; 


346  ME.  ERSKINE'S  SPEECH  ON  THE  MOTION  FOR 

for  I  hope  your  lordship  will  always  keep  in  vie\v 
the  great  difference  between  its  being  the  custom 
for  the  accountant  to  do  so,  and  its  being  his  duty, 
if  commanded  by  the  paymaster,  or  if  he  takes  it 
upon  himself  to  do  it ;  for  although  a  man  cannot 
be  called  upon  to  take  upon  himself  any  public 
office,  unless  he  has  accepted  of  a  patent,  or  some 
commission  from  the  Crown,  which  makes  him 
responsible  for  the  execution  of  the  duty  of  it,  yet 
if  he  voluntarily  takes  it  upon  himself,  he  is 
responsible  for  the  due  discharge  of  it ;  but  Mr. 
Bembridge  never  took  this  upon  him ;  he  says,  it 
was  intrusted  to  Mr.  Powell,  and  his  offence,  as 
stated  by  the  information,  is  a  wilful  concealment. 
Now,  in  point  of  law,  I  firmly  maintain,  that  unless 
Mr.  Solicitor-General,  when  he  rises,  is  able  to  show 
your  lordships,  upon  the  evidence  given  on  the  trial 
of  this  information,  that  if  Mr.  Bembridge  had 
trusted  Mr.  Powell  to  insert,  or  not  to  insert  thepe 
items,  and  had  kept  his  mind  from  all  knowledge 
of  what  was  there ;  if  he  had  been  perfectly  igno- 
rant of  any  of  the  charges  against  Lord  Holland, 
if  he  had  known  nothing  contained  in  the  accounts, 
yet,  that  he  would  still  have  been  subject  to  a 
criminal  information  in  this  court,  if,  in  point  of 
fact,  Mr.  Powell  had  been  guilty  of  any  wilful 
omission,  because  being  charged  with  an  official 
duty  by  the  public,  he  had  trusted  to  another  that 
which  he  ought  to  have  done  himself,  by  which 


A  NEW  TRIAL  IN  KING  VS.  BEMBRIDGE.        347 

means  the  public  receive  a  material  injury  by  the 
fraud  of  Mr.  Powell ;  I  say  Mr.  Solicitor-General 
must  maintain  that  proposition,  because  there  can 
IKJ  no  misprision  at  law,  except  in  the  case  of  high 
treason,  but  from  a  man's  neglect  of  his  own 
duties. 

Unless,  therefore,  Mr.  Bcmbridge  was  bound 
to  do  the  thing  himself,  which  Mr.  Powell 
did  not  do,  he  cannot  be  subject  to  an  information 
for  not  having  disclosed  this  fraud,  or  the  omission. 
If,  indeed,  he  was  the  check  the  public  had  pro- 
vided ;  if  being  entrusted  to  make  up  these  ac- 
counts ;  if,  though  it  was  his  duty  to  make  them 
up,  he  had  entrusted  it  to  another  to  do  it,  whose; 
dutv  it  was  not ;  in  such  case,  whether  he  knew  of 

9 

the  criminal  neglect  or  not,  he  would  be  a  criminal 
for  having  entrusted  that  to  another  which  he 
ought  to  have  done  himself.  Then,  is  there  any- 
thing upon  the  evidence  that  can  warrant  the  court 
to  say  that  the  jury  have  not  done  wrong  in  draw- 
ing such  conclusion  ?  If  it  was  the  oflice  of  Mr. 
Bembridge,  as  accountant,  under  any  circumstances 
to  make  up  these  accounts,  so  that  Mr.  Powell  could 
not  make  them  up;  if  it  was  even  criminal  in  Mr. 
Bembridge  to  suffer  him  to  do  it,  what  a  number 
of  criminals  there  must  have  been  in  this  office, 
from  its  first  institution !  and  if  we  should  not  be 
so  happy  as  to  j>ersuade  your  lordships  to  give  us 
a  review  of  this  cause,  it  will  avail  me  at  the  least 


348  MR.  ERSKINE'S  SPEECH  ON  THE  MOTION  FOR 

to  say,  when  I  come  to  the  other  part  of  the  sub- 
ject, in  mitigation  of  punishment,  that  he  has  only 
been  doing  that  which  the  most  upright  men  have 
constantly  done  before  him — which  Lord  Chatham 
did  —  which  Mr.  Winnington  did — which  the 
auditor  of  the  imprest  suffered  him  to  do — and 
which  would  have  been  a  great  breach  of  the  duty 
of  the  public  auditor  so  to  trust  the  books  into 
private  hands,  if  it  was  the  official  duty  of  the 
accountant  to  have  made  up  this  account  himself; 
if  everything  found  on  such  accounts  from  which 
the  public  may  suffer,  shall  be  chargeable  on  this 
accountant,  how  can  it  be  in  the  power  of  that 
auditor  of  the  imprest,  without  consulting  him,  to 
deliver  it  to  another?  And,  you  see,  the  witnesses 
come  here  and  say,  I  accepted,  from  Mr.  Bern- 
bridge  a  reference  to  another,  when  I  knew  it  was 
criminal  of  me  to  do  so.  I  left  the  man  whom  I 
knew  was  responsible  to  the  public,  because  the 
man  who  was  so,  thought  fit  to  shove  it  off  his  own 
shoulders,  and  desired  me  to  go  to  another,  to 
whom  we  were  not  called  upon  to  look !  I  never 
can  forget  the  distinction  which  I  laid  down,  that 
if  Mr.  Bcmbridge  is  criminal  for  this  misprision, 
he  must  have  been  criminal  even  if  it  had  not  been 
a  misprision,  he  must  have  been  criminal  for  the 
omission  of  the  man  to  whom  he  entrusted  it,  if 
the  public  suffered  for  it;  yet,  in  the  whole  course 
of  the  negotiation  with  those  persons  who  were 


A  NEW  TRIAL  IN  KING  V8.  BEMBRIDGE.      349 

called  upon  to  animadvert  upon  this  misdemeanor, 
not  one  of  them  ever  eaid  to  Mr.  Bembridge, 
you  arc  referring  to  another,  to  whom  you 
ought  not  to  refer  us.  It  is  plain  Mr.  Powell 
thought  himself  responsible;  there  are  many 
calamitous  reasons  why  the  court  will  take  it  for 
granted  that  he  thought  himself  so ;  if  he  had 
thought  Mr.  Bembridge  responsible,  would  he  not 
have  been  happy  to  have  referred  them  back  to 
Mr.  Bembridge  ?  Would  not  he  have  said,  why 
has  Mr.  Bembridge  referred  you  to  me  ?  He  is 
the  accountant,  it  is  his  duty  ?  He  made  no  such 
reference  back  to  Mr.  Bembridge,  and  Mr.  Hughes 
never  went  back  to  Mr.  Bembridge,  but  the  whole 
of  the  negotiation  went  through  Mr.  Powell. 

Upon  these  grounds  I  hope  that  the  first  aver- 
ment to  the  information  is  not  supported ;  if  it  be 
not  supported,  as  your  lordship  told  the  jury,  and 
have  again  said  to-day,  the  other  propositions  will 
fall  to  the  ground ;  but  I  hope,  though  it  should 
be  supported,  that  there  are  other  considerations 
for  your  lordships  in  the  present  stage  of  the  busi- 
ness ;  for  there  is  another  averment  that  he  wil- 
fully and  corruptly  concealed.  Now,  it  appears 
upon  the  evidence,  as  plainly  as  I  ever  saw  any- 
thing appear  upon  any  trial,  that  all  these  items, 
which  were  not  introduced  into  the  charge  u|xm 
Lord  Holland  by  Mr.  Powell,  were  open  to  public 
view  in  the  pay-office ;  every  man  saw  them ; 


350  ME.  ERSKINE'S  SPEECH  ON  THE  MOTION  FOR 

every  man  knew  that  they  existed,  and  when  the 
witness  was  asked,  why  they  were  not  introduced, 
Mr.  Powell  said  the  question  was,  whether  Lord 
Holland  should  ultimately  be  charged  with  them, 
because  they  were  accounts  respecting  Paris  Taylor, 
and  until  these  were  adjusted,  he  did  not  know 
whether  he  should  be  called  upon  to  introduce 
them  as  charges  against  Lord  Holland. 

The  items  themselves,  as  they  afterwards  were 
put  in  the  balance,  were  open;  every  person  saw 
them;  and  how  could  Mr.  Bembridge  hope  to 
conceal  that  which  there  was  not  a  clerk  in  the 
office  who  could  not  have  instantly  detected?  And 
if  I,  or  your  lordship,  were  disposed  to  go  into  that 
office,  there  was  not  one  of  these  charges  that  we 
should  not  have  seen ;  but  if  you  had  asked  Mr. 
Colborne,  who,  though  he  was  clerk  under  Mr. 
Bembridge,  was  employed  by  Mr.  Powell,  for  that 
purpose,  if  you  had  asked  him,  why  the  items  were 
not  introduced,  he  must  have  given  the  answer 
Mr.  Powell  gave,  when  he  was  referred  to,  viz., 
that  these  accounts  were  not  adjusted. 

It  is  fair,  then,  upon  this  evidence,  to  say  that 
when  Lord  Holland  appointed  his  own  executor  to 
make  up  his  accounts ;  when  Mr.  Bembridge  saw 

• 

that  Mr.  Powell  was  responsible  for  them;  and 
that  he  was  a  person  making  them  up  with  the 
public,  and  when  he  might  not  know,  besides,  how 
far  Mr.  Powell  had  a  right  to  keep  back  these 


A  NEW  TRIAL  IN  KINO  T8.  BEM BRIDGE.         351 

items  until  these  points  were  adjusted,  how  can 
the  court,  or  the  jury,  suppose  without  any  sort 
of  evidence  of  a  motive  of  corruption  in  Mr.  Bem- 
bridge,  that  he  wilfully,  and  with  an  intent  to 
defraud  the  public,  kept  back  these  articles? 
There  is  not  a  syllable  of  evidence  to  support 
so  cruel  a  conclusion  against  him,  for  it  apjiears 
most  palpably,  through  the  whole  of  the  testi- 
mony, that  these  items  were  kept  back  by  Mr. 
Powell,  upon  these  considerations. 

Lord  Mamfield.  Not  upon  Paris  Taylor's  con- 
sideration, because  his  accounts  were  questioned 
as  to  what  allowance  was  to  be  made,  and  there 
was  no  relation  to  that.  These  items  go  to  the 
discharge  of  Lord  Holland.  Paris  Taylor  had 
nothing  to  do  with  that. 

Mr.  Ersklne.  Though  the  account  of  Paris 
Taylor  had  no  relation  to  these  particular  items, 
yet  it  does  not  follow  from  thence  that  Mr.  Bern- 
bridge,  knowing  there  was  something  to  keep  the 
accounts  opened,  was  guilty  of  any  willful  omission 
in  not  letting  the  public  know  there  were  these 
particular  items  ;  since  the  account  was  not  closed, 
nor  could  be  till  the  consideration  of  these  items 
of  Paris  Taylor's  account  could  be  closed  also. 

Therefore,  it  is  evident,  he  had  no  corrupt 
motive  for  not  doing  that;  for  he  knew  there  was 
an  account,  with  respect  to  Paris  Taylor,  to  a 
large  amount,  which  was  not  finally  settled ;  and 


352  ME.  ERSKINE'S  SPEECH  ON  THE  MOTION  FOR 

as  it  was  not  known  what  allowance  should  be 
made  to  Lord  Holland,  upon  that  account,  he 
might  naturally  think  Mr.  Powell  would  deliver 
in  those  items  as  soon  as  the  account  of  Paris 
Taylor  should  be  finally  settled.  Nor  is  there 
any  evidence  to  show  that  Mr.  Powell  could  derive 
one  farthing  advantage  from  any  such  concealment. 

Upon  these  two  grounds,  even  if  there*  were  not 
a  third,  I  should  hope  that  your  lordship  would 
be  inclined  to  grant  this  rule  ;  but  I  shall  certainly 
not  forsake  the  ground  that  has  been  taken  by  my 
friends  who  spoke  before  me,  namely:  that  this  is 
not  an  indictable  offence;  and  I  am  sure  that  I 
should  be  the  last  man  in  the  world  to  stand  up 
to  contend  in  any  court,  much  less  in  a  court  filled 
as  this  is,  that  any  person  trusted  by  the  public, 
either  by  the  general  imposition  of  the  common 
law,  or  by  any  statute,  any  magistrate,  in  short, 
who  has  a  name,  or  an  existence  in  the  constitution 
of  the  realm,  be  he  what  he  may,  should  not  be 
subject  to  an  information,  or  to  an  indictment  for 
a  criminal  neglect  of  duty. 

I  certainly  shall  not  contend  that;  my  only 
reason,  as  my  learned  friends  have  contended 
before  rne,  and  in  which  I  shall  follow  them,  is, 
that  Mr.  Bembridge  does  not  appear  to  be  such 
an  officer,  or  magistrate,  as  either  the  general  law 
of  the  country  takes  any  cognizance  of,  or  by  the 
specific  institution  of  any  statute.  I  think,  to 


A  NEW  TRIAL  IN  KING  VS.  BEMBRIDGE.      353 

make  this  an  indictable  offence,  they  must  main- 
tain not  merely  that  the  manual  labor  of  making 
up  these  accounts  was  thrown  upon  him,  as  a  clerk 
in  the  office,   but  that  he  was  the  official  check ; 
that  the  paymaster  was  not  the  person  looked  to 
by  the  public  —  that  he  was  not  the  person   who 
was  responsible  to  the  public  for  the  rectitude  of 
his  own  accounts ;  whereas  the  office  of  the  pay- 
master is  the  most  important  office,  he  is  appointed 
by  patent,  and  then  he  is  an  officer  that  the  law 
takes  notice  of;  and  when  the  public  issues  money 
to  a  paymaster,  the  public  expects  from  that  pay- 
master an  account  of  the  expenditure.  But,  surely, 
an  officer  of  such  magnitude  is  entitled  to  have  an 
accountant  and  clerks,  and  to  have  several  persons 
under  him  who  are,  perhaps,  entitled  to  have  fees 
and  perquisites ;   but  still  the  paymaster  himself 
is  the  responsible  person  to  the  public,  and  the 
accountant  is  not  the  check  the  public  has  imposed 
over  him.     It  does  not  in  my  humble  conception, 
fall  within  the  meaning  of  the  word  magistrate, 
nor  is  he  that  public  man  whom  the  law  looks  to 
for  that   particular   responsibility ;  and   although 
he  might  be  subject  to  an  indictment,  if  he  refuse 
the  labor  of  making  up  these  accounts,  yet  the 
question  would  still  remain,  whether  he  was  an- 
swerable by  indictment,  or  by  information,  for  not 
giving  intelligence  of  something  that  another  per- 
son had  done  or  had  left  undone,  relating  to  his 
23  B 


354  MR.  ERSKINE'S  SPEECH  ON  THE  MOTION  FOR 

own  office  ?  Now,  none  of  these  cases  that  have 
been  cited  by  the  gentlemen  on  the  other  side,  at 
the  trial,  go  this  length.  In  the  case  of  Mr. 
Leheup,  it  was  an  indictable  offence ;  it  was  con- 
trary to  the  form  of  the  lottery  act.  In  the  case 
of  Mr.  Kennett,  there  was  a  duty  laid  upon  him 
by  the  statute,  to  read  the  riot  act ;  but  suppose 
there  had  been  no  duty  laid  upon  him  by  the 
statute,  yet  a  man  who  is  a  common  law  officer, 
has  a  duty  imposed  upon  him  ;  what  I  mean  is, 
that  there  is  nothing  specific  in  the  duty  of  this 
officer,  which  can  lead  the  court  to  think  that  he  is 
that  official  check  upon  the  paymaster,  and  that  he 
ought  to  have  made  up  these  accounts  himself,  so 
as  to  be  answerable  for  the  omission  of  another. 

The  sum  of  £2,600  seems  not  to  me  to  be  con- 
sidered as  a  salary  paid  by  the  public ;  it  is  part 
of  the  account  of  the  paymaster ;  it  is  de- 
ducted from  his  funds,  and  is  distributed,  not  only 
to  the  accountant,  but  to  all  the  menial  servants 
in  the  office;  the  paymaster  is  the  person  who 
pays  it,  and  it  seems  that  the  paymaster  being 
responsible  to  the  public,  he  has  a  sum  of  money 
issued  to  him,  out  of  which  he  makes  these  deduc- 
tions. Supposing  the  accountant  and  paymaster 
to  be  two  distinct  persons,  and  that  the  account- 
ant is  not  subordinate,  but  superior  to  the  pay- 
master, which  he  ought,  according  to  the  informa- 
tion, to  be,  if  he  is  a  check  upon  him ;  then  cer- 


A  NEW  TRIAL  IX  KHfO  VS.  BEMBRIDGE.      355 

tain  sums  of  money  would  be  issued  to  the  pay- 
master for  performing  that  duty ;  whereas  he  is 
considered  as  sul>ordinate,  and  certain  suras  are 
deducted  out  of  the  paymaster's  account,  accord- 
ing to  the  abuse,  as  it  should  seem  to  me,  of  office ; 
therefore,  I  should  hope  that  your  lordship  will 
not  conceive  this  to  be  an  indictable  offence. 

It  does  not  appear  by  the  evidence  that  it  was 
Mr.  Bern  bridge's  official  duty  to  make  up  and  ad- 
just these  accounts  with  the  auditor  of  the  im- 
prest*, and  it  not  being  his  official  duty,  he  him- 
self could  not  be  accountable  for  an  omission  in 
another,  inasmuch  as  there  can  be  no  misprisiou 
in  the  English  law,  except  in  treason,  for  another 
person's  concealing  a  thing,  omitted  to  be  done  by 
another,  which  it  was  his  duty  to  do  himself. 

But,  inasmuch  as  your  lordship  has  stud,  that  we 
ought  in  this  stage  of  the  business  to  consider 
what  the  discretion  of  the  court  would  dictate  as  a 
punishment  if  we  shall  have  been  so  unfortunate 
as  not  to  prevail  in  the  objections  we  have  Uiken 
to  the  verdict;  in  that  case,  I  am  sure,  we  can 
safely  rely,  not  only  upon  the  humanity,  but  even 
upon  the  most  rigid  justice  of  the  court,  when  the 
sentence  is  to  fall  upon  a  man,  not  only  resj>ected 
and  beloved  in  his  private  life,  but  who  stands  upon 
the  evidence  as  a  most  intelligent  and  faithful 
servant  of  the  public  for  a  long  series  of  yean. 
Under  such  circumstances,  your  lordships  will  not 


356  ME.  EESKINE'S  SPEECH  ON  THE  MOTION  FOE, 

suffer  any  consideration  of  the  prevalence  and  the 
danger  of  abuses  in  public  offices,  which,  probably, 
led  astray  the  jury  in  forming  their  conclusion,  to 
effect  your  more  calm  and  deliberate  judgments  if 
his  offence  is  not  tainted  with  the  corruption  im- 
puted to  him ;  and  it  is  quite  impossible  the  court 
can  believe  that  if  he  had  been  conscious  of 
even  criminal  neglect,  much  ]ess  of  a  foul  and 
sordid  misdemeanor,  he  would  have  spontaneously 
poured  out  a  labored  accusation  against  himself 
before  inquisitors  who  had  no  right  to  demand 
from  him  any  admissions,  which  could  criminate 
himself.  God  alone  can  look  into  the  hearts  of 
men,  but  judges  have  a  constant  recourse  to  the 
most  lenient  constructions  of  human  conduct  when 
they  sit  in  judgment  upon  their  fellow-creatures  ; 
and  even  when  they  are  brought  to  the  most 
manifest  conclusions  of  guilt,  however  heinous, 
administer  justice  in  mercy.  I  am  aware  that  a 
solemn  duty  is  cast  upon  your  lordships  when  you 
are  executing  the  laws,  that  guard  the  public  reve- 
nue, above  all  in  times  which  calls  loudly  for  its 
support;  but  in  a  case  like  this,  even  the  officers 
of  the  Crown,  who  are  its  guardians,  will  feel  them- 
selves justified  in  leaving  to  the  court  the  full 
measure  of  merciful  consideration,  which  it  is 
always  so  pleasant  to  your  lordships  to  exercise. 
I  conclude  with  expressing  my  hope,  that  the  pain- 
ful duty  of  punishment  will  be  spared  altogether 


A  NEW  TRIAL  IN  KING  VS.  B  EM  BRIDGE.         357 

by  your   finding   that  there   is  no  guilt  in   the 
defendant  to  be  punished. 


The  court  having  refused  the  motion  for  a  new  trial  sen- 
tenced Bembridge  to  be  committed  to  the  custody  of  the 
marshal  for  six  calendar  months,  to  pay  a  fine  of  £2,650, 
and  to  be  imprisoned  until  payment  of  the  fine, 


Trial  of  JOHN  VINT,  GEORGE  ROSS,  and  JOHN 
PARRY,  for  a  libel  on  his  Imperial  Majesty,  Paul  the 
First,  Emperor  of  all  the  Russias:  tried  by  a  Special 
Jury,  before  the  Right  Son.  Lloyd  Lord  Kenyon,  Lord 
Chief  Justice  of  the  Court  of  King's  Bench,  at  Guild- 
hall, London,  on  the  4th  day  of  March,  39,  George  III. 
A.  D.  1799. 


STATEMENT. 

The  information  filed  by  the  Attorney-General  against 
John  Vint,  printer,  George  Ross,  publisher,  and  John  Parry, 
proprietor  of  The  Courier,  a  newspaper  published  in  Lon- 
don, charged  them  with  the  publication  of  a  libel  against 
the  Emperor  of  Russia.  The  tenor  of  the  alleged  libelous 
publication  was  that  the  Emperor  had  "made  himself  ob- 
noxious to  his  subjects  by  various  acts  of  tyranny,  and 
ridiculous  in  the  eyes  of  Europe  by  his  inconsistency." 
The  Crown  sought  to  establish,  that,  a  close  friendship  ex- 
isting between  the  King  of  England  and  the  Emperor  of 
Russia,  a  libel  upon  the  one  monarch  was  an  offence  of 
which  the  other  might  take  cognizance,  and  that  each 
nation  was  bound  to  enforce  a  decent  respect  to  the  ruling 
powers  of  the  other.  The  information  is  omitted  as  the 
substance  of  the  charge  sufficiently  appears  in  the  argu- 
ments of  counsel  and  in  the  summing  up  of  Lord  Kenyon. 
The  information  was  opened  by  the  Attorney-General,  Sir 
John  Scott,  afterwards  Lord  Chancellor  Eldon. 


SPEECH  OF  THE  ATTORNEY -GENERAL. 


GENTLEMEN  OF  THE  JURY  :  This  is  an  informa- 
tion filed  against  three  persons:  John  Vint, 
printer ;  George  Ross,  publisher ;  and  John  Parry, 
proprietor  of  a  newspaper  called  the  Courier, 
which,  from  its  extensive  circulation,  I  have  no 
doubt  you  have  all  of  you  had  frequent  occasion 
to  see.  The  information  states,  that  there  was  a 
strict  and  firm  friendship  and  alliance  between  our 
present  Sovereign  lord  the  King  and  his  Imperial 
Majesty,  Paul  the  First,  Emperor  of  all  the  Rus- 
sias,  etc. ;  and  that  the  defendants,  well  know- 
ing the  premises,  but  wrongfully  and  maliciously 
contriving  and  intending,  not  only  to  defame,  tra- 
duce and  vilify,  his  said  imperial  Majesty,  but  also, 
as  much  as  in  them  lay,  to  interrupt,  disturb,  and 
destroy  the  friendship,  good-will,  and  harmony, 
subsisting  between  our  said  Sovereign  lord  the 
King,  and  his  imperial  Majesty,  and  their  said  re- 
spective subjects ;  and  to  create,  stir  up,  and  excite 
hatred,  jealousies,  and  discord  between  our  .-;ii<l 
lord  the  King  and  his  subjects,  and  his  said  impe- 
rial Majesty  and  his  subjects ;  on  the  first  day  of 
November,  in  the  thirty-ninth  year  of  the  reign  of 


360    THE  ATTORNEY-GENERAL'S  SPEECH  ON  THE 

our  said  present  sovereign  lord,  George  the  Third, 
King  of  Great  Britain,  etc.,  at  London,  to  wit :  in 
the  parish  of  St.  Dunstan,  in  the  West,  in  the 
ward  of  Farringdon,  Without,  in  London,  did 
print  and  publish,  and  cause  to  be  printed  and 
published,  in  a  certain  public  newspaper,  called 
The  Courier  and  Evening  Gazette,  a  most  malicious, 
mischievous,  and  scandalous  libel,  of  and  concern- 
ing his  said  imperial  Majesty,  to  the  tenor  and 
effect  following :  "  The  Emperor  of  Russia  is 
rendering  himself  obnoxious  to  his  subjects  by 
various  acts  of  tyranny,  and  ridiculous  in  the  eyes 
of  Europe  by  his  inconsistency.  He  has  now 
passed  an  edict,  prohibiting  the  exportation  of 
timber,  deals,  etc.  In  consequence  of  this  ill-timed 
law,  upwards  of  one  hundred  sail  of  vessels  are 
likely  to  return  to  this  kingdom  without  freights." 

Gentlemen,  I  have  been  commanded  to  file  the 
information  now  before  you  for  trial,  in  order  to 
vindicate  the  character  of  the  Emperor  of  Russia ; 
a  prince  in  amity  with  his  country,  defamed  in  a 
libel,  contrary  to  the  laws  and  usual  policy  of 
nations,  which  protect  not  only  the  magistracies 
but  the  individuals  of  each  other  from  insult  and 
reproach. 

With  regard  to  the  just  limits  of  the  liberty  of 
the  press,  I  have  never  entertained  different  opin- 
ions from  Mr.  Erskine,  even  when  representing 
defendants  at  the  bar ;  their  applications,  of  course, 


TRIAL   OF   JOHN   VINT  AND  OTHERS.  361 

create  differences,  and  these  are  to  be  considered  in 
this  trial.  I  admit  the  right  of  free  discussion,  as 
it  regards  all  subjects  of  importance  to  the  interest 
or  happiness  of  mankind ;  and  that  it  is  only  the 
malevolent  and  useless  excess  which  ought  to  be 
punished. 

The  Attorney-General,  after  several  other  pre- 
liminary observations,  said,  the  Emperor  had  made 
an  edict  against  the  importation  of  timber,  which, 
in  friendship  to  Great  Britain,  he  had  relaxed  as 
to  this  country,  and  the  paragraph  in  question  not 
merely  charges  him  with  this  act  as  one  of  foolish 
impolicy  in  the  management  of  his  own  empire, 
but  with  a  system  of  tyranny  and  oppression  in 
various  instances,  wholly  unconnected  with  the 
edict  which  it  condemns.  The  principle,  therefore, 
upon  which  the  prosecution  proceeds,  is  perfectly 
plain  and  simple,  and  I  will  not  enlarge  uj>on  it 
farther  than  to  remind  you  of  the  consequences  of 
permitting  such  unwarrantable  publications  to  pass 
unpunished.  I  am  aware  that  there  are  plausi- 
ble and  ingenious  arguments  which  may  occur  to 
the  learned  advocate  for  the  defendants,  from 
whom  you  will  no  doubt  have  the  gratification  of 
a  brilliant  speech ;  but  without  rejecting  the  pleas- 
ure and  information  which  may  be  fairly  derived 
from  it,  I  know  you  will  still  recollect  the  solemn- 
ity of  your  oaths,  and  the  obligation  you  owe  to 
the  laws  of  your  country. 


[The  treaty  with  Russia  was  then  produced,  and 
the  publication  of  the  newspaper  proved.] 


ME.   ERSKINE'S  SPEECH  IN  DEFENCE. 


GENTLEMEN  OF  THE  JURY  :  I  never  rose  with 
so  little  anxiety  as  counsel  for  defendants  in  a 
criminal  prosecution  as  I  at  this  moment  feel ; 
because  I  do  not  recollect  to  have  ever  before  had 
to  answer  a  charge  so  completely  and  manifestly 
unfounded.  My  only  embarrassment  would  be,  if 
I  were  less  accustomed  to  this  place,  that  the 
Attorney-General  had  bespoken  from  me  a  brilliant 
speech ;  which  is  like  suddenly  calling  in  a  large 
company  for  a  song  from  a  man  who  is  but  little 
of  a  singer,  and  the  more  disqualified  by  so  unex- 
pected a  summons.  The  case,  however,  of  the 
defendants,  requires  neither  eloquence  nor  music  to 
set  it  off,  being  the  plainest  and  clearest  that  can 
be  imagined ;  whilst  that  of  the  Crown,  if  it  is 
seriously  to  be  insisted  on,  demands  the  most 
determined  resistance  from  all  who  wish  to  pre- 
serve that  freedom  and  security  of  political  discus- 


TRIAL  OF  JOHN   VINT   AND    OTHEKS.          3G3 

sion,  the  right  of  which  the  Attorney-General  has  80 
honestly  acknowledged,  and  the  value  of  which 
acknowledgment  is  so  clear,  because  when  princi- 
ples are  once  ascertained  and  admitted  hy  those 
who  prosecute  for  the  Crown,  it  must  be  the  fault 
of  juries  only  if  the  press  is  not  free. 

It  has  been  admitted,  then,  that  it  is  the  clear 
right  of  every  man  in  England  to  examine  every 
subject  connected  with  its  interests,  and  to  observe 
upon  the  transactions  of  other  nations  and  the 
general  a  flairs  of  the  world,  and  without  that  re- 
straint which  turns  into  a  service  of  danger  the 
propagation  of  useful  information,  and  the  sacred 
assertion  of  truth.  Malicious  mischief,  indeed, 
whether  it  appears  in  printing  or  in  any  other 
human  action,  ought  to  be  punished  ;  but  the  rep- 
resentation of  facts  acknowledged  to  be  true,  and 
the  promulgation  of  useful  opinions  fairly  connect- 
ed with  them,  can  never  in  conscience  or  in  reason 
be  accounted  a  misdemeanor,  unless  they  are 
obviously  directed  and  intended  to  excite  disobedi- 
ence and  disaffection  to  the  government  of  our 
own  country ;  a  charge  upon  this  occasion  quite 
out  of  the  question. 

Is  every  writing  necessarily  to  be  adjudged  a 
libel,  which  questions  the  wisdom  or  integrity  of  a 
foreign  prince,  or  which  condemns  his  counsels  as 
weak,  capricious,  and  unjust,  though  manifestly 
injurious  to  our  own  people,  merely  because  not 


MR.    EESKINE  S   SPEECH   ON   THE 

being  at  war  with  his  nation,  he  is  styled  as  in 
amity  with  our  state  ?  This  is  a  prosecution  which 
cannot  possibly  be  supported,  without  saying  that 
the  contemporaneous  history  of  the  world  is  shut 
out  from  the  British  press ;  because  if  it  is  open  to 
it  at  all,  it  must  be  liberally,  impartially,  and  fear- 
lessly open  to  it,  and  ought  not  to  be  dependent 
upon  the  interests  or  passions  of  the  transient 
rulers  of  the  day.  I  am  prepared  fairly  to  examine 
this,  and  not  speculatively,  but  practically  as  it 
appears  from  the  whole  reason,  intelligence,  and 
custom  of  our  country,  as  it  is  embodied  in  all  our 
publications,  not  merely  from  private  presses  with- 
out an  instance  of  prosecution  or  interruption,  but 
from  the  public  councils  of  the  kingdom.  The 
world,  gentlemen,  is  at  this  moment  so  singularly 
circumstanced,  and  the  characters  and  conduct  of 
foreign  princes  are  unfortunately  so  inseparably 
connected  with  British  interests,  that  there  must 
be  an  universal  and  perilous  silence  of  the  only 
rational  policy  of  this  Empire,  or  a  reasonable  lati- 
tude must  be  allowed,  not  only  to  consider  the 
transactions  of  foreign  governments,  but  the  dis- 
positions and  characters  of  their  princes  ;  because 
it  is  notorious  that  the  councils  of  their  nations  are 
dependent  upon  their  sovereign's  will.  At  this 
very  moment,  gentlemen,  above  all  others  the 
British  government,  should  be  very  slow  indeed  to 
lay  down  a  rule  which  must  shut  the  mouths,  and 


TRIAL  OF   JOHN   VINT   AKD  OTHEB8.         365 

break  the  presses  of  its  own  subjects  and  defenders, 
to  prevent  their  showing  that  guilt  and  dishonor, 
which  must  be  fixed  somewhere,  does  not  rest 
here,  but  with  those  princes  of  Euroj)e,  who,  if 
protected  by  our  laws  from  all  examination  of 
their  conduct,  the  disgrace  must  attach  upon  our- 
selves. 

It  is  by  no  means  my  purpose,  either  by  asser- 
tion or  insinuation,  to  bring  before  this  court  and 
jury,  who  have  no  jurisdiction  upon  the  subject, 
any  reproach  or  reflection  upon  our  own  ministers 
or  counsels  ;  I  can  appeal,  indeed,  confidentially  to 
the  noble  judge,  that  though  as  a  private  man  I 
have  a  right  to  my  own  opinions,  I  have  never 
mixed  such  topics  with  any  pleadings,  unless  they 
were  not  merely  relevant,  but  the  very  subject  to 
be  discussed ;  and  I  feel  a  pleasure  that  my  duty 
to-day  directs  to  me  a  very  different  course,  and 
which  will  lead  to  the  justification  of  this  supposed 
misdemeanor.  It  is,  indeed,  the  best  defence  of 
British  ministers,  or  rather  the  only  one  they  have 
against  responsibility  for  our  present  condition, 
that  no  libel  can  be  written  upon  the  sovereigns 
of  Europe ;  but  that  on  the  contrary,  no  language 
is  sufficiently  impressive  or  copious  to  express  the 
indignation  and  contempt  that  every  Briton  who 
lores  his  country  ought  to  feel  for  them ;  but  even 
if  it  could  be  decided  that  the  law  may  be  set  in 
motion  against  those  who  speak  the  truth  concern- 


366          ME.  ERSKINE'S  SPEECH  ON  THE 

ing  them,  yet  privilege  of  speech  at  the  bar  is 
above  this  legal  jurisdiction,  and  if  any  one  hap- 
pens to  be  here  who  is  writing  correctly  what  I 
am  now  saying  to  you,  I  will  send  it  emblazoned 
to  their  foreign  majesties  that  they  may  know 
what  every  body  thinks  at  least  concerning  them, 
even  if  nobody  should  have  the  privilege  of  ex- 
pressing it. 

Our  country,  to  speak  plainly,  is  at  this  moment 
in  a  most  tremendous  crisis  of  her  affairs  ;  no  man 
can  look  forward  to  the  future  without  affliction, 
nor  the  bravest  without  dismay.  Suppose,  then, 
that  any  political  writer,  impressed  with  a  sense  of 
our  danger,  and  actuated  by  the  purest  patriotism, 
were  thus  to  address  the  councils  of  the  King  :  "  It 
is  true  that  England  stands  at  this  moment  the 
first  amongst  the  nations  of  the  world,  and  that 
her  activities  have  been  more  honorable  and  more 
distinguished  than  at  any  former  period  in  her  his- 
tory ;  but  to  what  rational  object  have  they  been 
exerted  ?  And  what  useful  end  are  her  exertions 
likely  to  produce  ?  Neither  humanity  nor  reason 
would  consent  to  tear  to  pieces  the  muscles  of  a 
noble  animal  for  the  mere  exhibition  of  its 
strength  ;  you  ought  to  have  known  from  the 
beginning  that  your  contest  with  France  would 
end  exactly  as  with  the  present  management  it  is 
most  likely  to  do."  Would  this,  if  committed  to 
writing,  be  a  libel  even  on  our  own  government  ? 


TRIAL    OF    JOHN   VINT  AND   OTHERS.          367 

Against  such  a  charge,  could  no  defence  be  made 
consistently  with  our  laws  and  constitution  ?  Could 
the  many  worthy  and  independent  men,  who  from 
honest  principle,  for  opinions  may  be  various  upon 
such  subjects,  supported  the  war  in  its  commence- 
ment, have  no  means  of  defence  for  exposing  a 
mad  and  disgraceful  waste  of  national  strength 
without  a  national  object?  Suppose  a  man  to  be 
convinced  that  if  the  war  had  been  conducted  with 
integrity  and  concert  by  all  the  powers  engaged, 
it  might,  in  fair  probability,  have  been  successful ; 
can  it  be  contended  that  such  a  person,  though  he 
saw  the  disgust  of  the  people  excited  by  such  dis- 
asters against  our  own  government,  must  neverthe- 
less  suffer  it  to  take  its  unjust  and  dangerous 
course,  for  fear  of  offending  those  worthy  and 
active  allies  which  it  has  pleased  God  to  bless  us 
with  ?  Might  not  a  political  writer  publish  in  a 
pamphlet  his  opinion  that  the  war  had  not  mis- 
carried from  any  default  in  our  own  arms  or  coun- 
cils, and  show  to  what  causes  so  many  reverses 
were  fairly  to  be  imputed  ?  And  would  the  Attor- 
ney-General prosecute,  because  truth  impelled  such 
a  writer  to  cast  the  blame  upon  our  allies  ?  And 
who  can  doubt  that  truth  must  so  direct  and  im- 
pel every  writer  upon  the  subject  ? 

If  the  princes  of  Europe  were  convinced,  as 
they  declared  themselves  to  be,  that  the  very  princi- 
ples, even  without  the  arms  of  the  French  repub- 


368  MB.  EKSKINE'S  SPEECH  ON  THE 

lie,  threatened  the  existence  of  their  establish- 
ments, was  not  this  an  earnest  to  Great  Britain  of 
a  most  faithful  and  energetic  confederacy,  sufficient 
to  overwhelm  a  power  then  in  the  first  throes  and 
convulsions  of  a  sanguinary  revolution  ?  Was  not 
this  state  of  things  a  signal  for  universal  activity 
and  concord  from  the  Mediterranean  to  the  Baltic  ? 
Did  it  not  promise  a  bond  of  union  more  sacred 
and  indissoluble  than  ever  before  had  united 
nations  in  the  leagues  of  war  ?  Was  not  their 
very  existence  as  monarchs  clearly  at  stake,  whilst 
England  from  her  insular  situation,  was  more 
secure  ?  And  from  the  moment  when  their  war- 
like confederacy  was  declared  and  acted  upon,  was 
there  not  then  another  and  still  stronger  pledge 
for  their  fidelity,  since,  having  declared  that  repub- 
lican France  was  incompatible  with  the  safety  of 
Europe,  they  could  not  but  know,  that,  like  the 
first  law  of  nature  in  the  action  and  reaction  of 
matter,  the  motto  of  republican  France  would  be 
the  destruction  of  all  thrones  ?  Now,  all  this  forms 
the  defence  of  our  own  country  and  its  govern- 
ment for  carrying  on  the  war ;  and  could  it  possi- 
bly be  considered  as  a  libel  in  our  courts  of  justice, 
to  prove  that  from  no  fault  of  ours,  it  had  been 
unsuccessful,  and  even  disastrous  ?  Would  it,  I  say, 
be  a  libel  in  a  man  fairly  thinking  and  acting  with 
government,  and  writing  from  unanswerable  facts 
in  its  defence,  to  expose  the  causes  which  disap- 


TRIAL  OF   JOHN   VIST   AND  OTHEKS.         309 

pointed  so  just  an  expectation,  and  ended  in  the 
rout  and  discomfiture  of  this  seemingly  invulnera- 
ble phalanx?  If,  then,  the  right  of  defending  our 
own  government  be  admitted,  and  the  Attorney- 
General  will  not  deny  it,  how,  in  God's  name,  could 
such  a  defence  or  history  be  written,  without  hold- 
ing up  to  the  ridicule  and  contempt  of  the  world, 
the  very  princes  concerning  whose  edicts  it  seems 
we  must  not  dare  to  write,  even  though  they  most 
materially  affect  the  commerce  and  prosj>erity  of 
our  country,  and  relate  to  nothing  political,  but 
only  to  the  exportation  of  deal  timber.  For  my 
own  part,  gentlemen,  if  I  were  to  write  my  own 
thoughts  concerning  them,  they  would  be  very 
shortly  expressed,  but  would  throw  very  far  into 
the  shade  the  writing  which  is  now  prosecuted; 
I  should  probably  express  myself  in  some  such 
manner  as  this:  If  the  princes  of  Europe  were  not 
convinced,  from  the  strongest  and  the  clearest  evi- 
dence, that  the  consequences  of  the  French  revolu- 
tion did  actually  violate  the  freedom  and  indepen- 
dence of  other  nations,  they  ought  to  have  been 
wholly  neutral ;  but  if  they  were  justified  in  think- 
ing the  contrary,  which  it  is  not  my  province,  and 
therefore  would  not  be  a  fair  exercise  of  my  priv- 
ilege  to  agree  to  or  deny  in  this  place,  then  they 
ought  to  have  made  an  united,  continued,  and 
unexampled  exertion,  which  no  sacrifices,  however 
great,  or  difficulties,  however  perplexing,  should 
24  B 


370          ME.  ERSKINE'S  SPEECH  ON  THE 

for  a  single  instant  have  disappointed  or  relaxed  ? 
Now,  has  this  been  their  conduct?  Directly  the 
reverse ;  and  for  this  reason  the  friends  of  our  gov- 
ernment, and  all  its  subjects  interested  in  its  honor 
or  security,  have  a  right  to  complain  in  terms 
which  no  bitterness  of  sarcasm  could  adequately 
express,  but  which  ought  rather  to  be  criticised  for 
tameness  than  censured  as  a  libel. 

Gentlemen,  this  is  not  declamation,  but  a  correct 
introduction  to  facts  which  I  mean  to  state ;  and  I 
will  therefore  first  examine,  to  support  it,  the  con- 
duct of  the  late  King  of  Prussia,  who  was  the  first 
to  accede  to  the  confederacy  and  to  provoke  the  war. 
He  penetrated  into  the  heart  of  France  with  a 
mighty  army,  and  then,  as  if  he  had  been  predesti- 
nated to  establish  that  invasion  was  impracticable, 
he  turned  quickly  round  as  if  he  had  seen  a  spirit 
in  his  path,  and  dissolved  his  army  as  by  enchant- 
ment. At  that  critical  time  the  French  were  in  a 
manner  a  naked  and  defenceless  people,  tearing 
from  the  sepulchres  the  transmutation  of  animal 
substances  for  the  materials  of  war,  which  thus 
death  itself  was  to  furnish  for  the  destruction  of 
the  living ;  whilst  the  bells  of  their  churches  and 
the  irons  that  surrounded  them,  were  the  principal 
weapons  she  could  present  against  the  invading 
sovereigns  of  Europe,  though  supported  by  their 
immense  military  establishments  and  the  energies 
of  their  ancient  governments,  undisturbed  by  civil 


TRIAL   OF   JOHN   VINT  AND  OTHERS.  371 

commotions  or  by  external  war.  Yet  this  was  the 
period  when  these  confederate  princes,  to  whom  all 
wisdom  is,  it  seems,  alone  with  safety  to  be  imputed, 
lay  upon  their  arms  in  slumbrous  unison,  whilst 
civil  fury  was  preying  upon  the  bowels  of  republi- 
can France  !  Peace  then  l>e  to  the  remains  of  the 
late  King  of  Prussia.  He  was  succeeded  by  the 
present,  who  began  his  reign  in  an  ominous  vibra- 
tion between  j>eace  and  war,  between  empty 
threats  and  contemptible  submission,  suffering  his 
nearest  and  dearest  kindred  to  remain  exiles  from 
the  countries  and  ancient  inheritances  of  their 
fathers,  whilst  he  was  engaged  in  some  slipjKTy, 
shabby  compromise  for  his  own  security,  magnani- 
mously contending  as  he  was  at  that  moment  with 
Hamburg  for  the  imprisonment  of  Napper  Tandy, 
after  having  suffered  without  a  remonstrance  the 
ancient  states  of  Switzerland  to  be  over-run  and 
subverted ;  whilst  he  himself,  a  leader  and  chief 
of  the  Germanic  Empire,  with  one  hundred  and 
fifty  thousand  men  in  arms  was  contented  to  suffer 
it  to  be  dissolved  for  ever. 

If  this  prince  thought  it  better  that  France 
should  prevail,  and  acted  uj>on  this  principle,  why 
was  he  not  her  ally  ?  Why  did  he  tam|>cr  and 
temporize  ?  Why  did  he  keep  the  word  of  prom- 
ise to  the  ear  but  break  it  to  the  hopes  of  Europe? 
I  apprehend,  therefore,  that  it  is  out  of  the  power, 
at  least  of  a  British  subject,  to  libel  the  King  of 


372          ME.  EKSKINE'S  SPEECH  ON  THE 

Prussia ;  and  to  defame  the  Emperor  of  Germany 
would  scarcely  be  less  difficult.  They  had  played 
their  parts  of  pusillanimity  and  folly  together  in 
rapid  and  disgraceful  succession.  The  present 
Emperor  I  have  heard  described  as  an  amiable 
man,  and  it  is  therefore  painful  to  speak  of  him 
when  truth  must  be  spoken.  What  was  his  con- 
duct when  he  listened  to  the  treaty  of  Campo 
Formio?  Did  he  suppose  that  Bonaparte,  the 
most  able  and  enterprising  general  since  the  days 
of  Alexander,  would  have  offered  him  peace  on  his 
near  approach  to  Vienna,  if  he  had  had  full  confi- 
dence in  his  own  security  ?  That  sagacious  officer 
knew  the  contrary;  he  knew  that  Italy  was  con- 
quered, but  not  organized,  and  might  follow  his 
steps  in  the  revulsion  of  conquest;  and  other 
impending  dangers  suggested  the  treaty.  The 
bait  to  the  Emperor  was  Venice :  a  bauble  to  please 
a  child,  to  be  taken  away  again  when  it  went  to 
sleep ;  yet  for  this  he  gave  up  the  key  of  Italy. 
It  may  be  said  that  this  was  an  act  of  necessity ; 
but  if  it  was,  why  did  he  not  yield  to  its  imperious 
dictates,  and,  if  the  continuance  of  the  war  was  impol- 
itic, act  fairly  upon  the  principles  of  peace?  But 
he  did  neither;  and  when  he  saw  danger  approach- 
ing the  thrones  of  Tuscany,  Naples  and  Sardinia, 
instead  of  calling  out  the  legions  of  Bohemia  and 
Hungary,  and  making  one  great  and  last  effort  to 
baffle  the  gigantic  projects  of  France,  he  contented 


TRIAL   OF   JOHN    VINT   AND  OTHERS.          373 

himself  with  sending  a  harlequin  into  Italy  to  assist 
at  a  carnival.  Now  I  desire  to  ask  the  Attorney- 
General,  whether  it  would  he  a  libel  to  publish 
that  the  timidity  and  distracted  weakness  of  this 
prince  had  contributed  to  exhaust  the  finances, 
and  to  defeat  the  objects  of  the  ministers  and  Par- 
liament of  Great  Britain  ?  And  if  it  must  be 
admitted,  for  this  reason,  to  be  no  libel,  can  any 
writing  be  declared  one  which  stands  upon  the 
same  principles,  merely  because  it  is  considered 
one  by  the  Crown  ? 

As  to  the  Emperor  of  Russia,  whose  character  is 
to  be  supported  by  this  prosecution  of  a  transient 
publication  in  a  daily  newspaper,  he  might  have 
laid  for  it  a  lasting  foundation,  if  he  had  consulted 
his  own  honor  and  security ;  he  had  been  bred  in 
the  school  of  adversity,  and  the  world  looked  up 
to  him  with  high  expectation,  realized  by  some 
acts  of  sound  policy  and  wisdom  on  his  first  com- 
ing to  the  throne ;  but  he  had  afterwards  but  too 
much  vindicated  the  paragraph  complained  of. 
Instead  of  endeavoring,  like  one  of  his  great  pred- 
ecessors,  who  worked  in  dock-yards  in  England, 
to  carry  the  useful  arts  of  the  world  into  his  own 
country,  no  man  could  enter  it  for  purposes  of 
trade  or  science,  without  a  passport,  and  even 
personal  recommendation ;  a  regulation  founded 
upon  the  weak  imagination,  that  evil  principles 
could  be  imported  like  corporeal  jiestilence,  and 


374  ME.  EKSKINE'S  SPEECH  ON  THE 

shutout  by  a  police  on  the  principle  of  quarantine; 
an  idea  which  reminds  me  of  what  Milton  says,  in 
his  Areopagitica,  of  a  wise  country  gentleman  who 
raised  the  wall  of  his  park  to  keep  out  the  crows. 

Gentlemen,  I  shall  close  here  this  disgusting  his- 
tory; for  the  introduction  of  which,  or  any  part 
of  it,  I  ought  to  apologize  to  the  court,  but  for  its 
direct  and  unanswerable  application.  I  persuade 
myself  that  there  is  not  a  man  in  England  who 
would  consider  as  a  libel,  any  of  the  instances  I 
have  insisted  on  by  way  of  example;  and  if  the 
principle  is  once  admitted,  it  is  impossible  to  draw 
any  rational  line  in  the  application,  except  the  one 
I  have  freely  admitted,  viz.,  whether  the  writing 
be  honestly  intended,  or  malicious.  If  malicious, 
I  abandon  the  justification. 

As  to  the  danger  to  the  state  from  these  sort 
of  writings,  more  especially  as  when  in  this  case, 
there  has  been  no  kind  of  complaint;  I  should 
think  that  Russia,  from  its  immense  distance,  and 
from  the  circumstance  that  our  newspapers  do  not 
circulate  there  as  in  France  and  Germany,  and 
that  our  language  is  but  little  known  among  the 
inhabitants,  was  of  all  instances  of  apprehension 
on  that  score  the  most  singular  to  select;  and  if  it 
succeeds  I  expect  to  see,  very  soon,  an  information 
filed  for  a  libel  upon  the  planet  Saturn,  setting 
forth  that  the  printer  of  some  London  newspaper, 
maliciously  intending  and  contriving  to  disturb 


TRIAL   OF   JOHN   TINT   AND  OTHERS.          375 

the  laws  of  gravitation,  and  to  create  great  dis- 
order and  mutiny  amongst  the  planets,  had  printed 
and  published  that  Saturn  had  no  dependence  on 
the  sun,  and  was  not  governed  in  his  orhit  hy  its 
influence;  with  another  count  for  publishing  that 
he  had  only  four  satellites,  whereas  in  truth,  and  in 
fact,  he  had  five. 

Gentlemen,  this  may  be  thought  a  ridiculous 
parallel,  as  the  laws  of  nature  could  not  be  changed 
by  a  paragraph  in  a  newspaper,  but  so  neither  can 
any  relations  amongst  states  that  are  worth  pre- 
serving. The  only  thing  the  resemblance  fails  in, 
is  that  Saturn  does  not  send  an  ambassador  to  the 
earth ;  but  I  have  already  said,  and  I  am  ready  to 
prove,  that  the  Russian  ambassador  has  neither 
directly  nor  indirectly  interfered. 

I  have  already,  gentlemen,  or  rather  with  the 
most  tiresome  tautology  very  frequently,  admitted 
that  none  of  the  cases  I  have  troubled  you  with, 
by  way  of  illustration  and  example,  apply  to  cases 
of  malicious  falsehood ;  but  where  a  jury  can 
plainly  see  that  the  writing,  however  severe,  was 
intended  to  be  real  history  and  observation,  it  does 
not  fall,  upon  any  just  or  useful  principle,  under 
the  acceptation  of  a  libel. 

Since  the  libel  act,  the  judge  cannot  say  what  is 
a  libel,  as  a  judgment  of  law;  he  can  only  give 
his  opinion,  as  I  have,  ujwn  general  principles, 
though  with  the  high  authority  of  his  station ;  but 


376  ME.  EESKINE'S  SPEECH  ON  THE 

the  jury,  after  all,  are  bound  upon  their  oaths  to 
decide  from  all  the  circumstances  of  the  case,  and 
I  feel  myself  obliged  to  say,  cannot,  in  the  present 
instance,  decide  against  the  defendants  without 
manifest  injustice.  Writers,  in  all  times,  have  not 
only  written  with  impunity  on  such  subjects,  but 
the  press  has  literally  teemed  with  them  without 
censure  or  question.  Paragraphs,  ten  times  more 
severe  than  the  present,  against  the  Emperor  and 
King  of  Prussia,  have  been  in  great  circulation 
within  these  few  hours  past,  which  the  Times  and 
True  Briton  have  re-printed,  and  I  confess  I  see  no 
fault  in  it ;  but,  be  that  as  it  may,  I  will,  for  a 
most  trifling  premium,  underwrite  their  security, 
because  they  are  truths  which  nobody  can  deny, 
and  which  all  England  has  an  interest  in  exposing. 
[Mr.  Erskine  here  read  the  letters  from  Mr. 
Sharp,  the  British  consul  at  St.  Petersburgh,  to 
the  governor  of  the  Russia  Company,  to  prove 
that  the  edict  was  in  fact  issued  and  existed  as 
represented  in  the  Courier  by  the  article  in  ques- 
tion, and  made  a  forcible  appeal  to  the  feelings  of 
the  jury  upon  the  injustice  of  subjecting  innocent 
men,  perhaps,  to  an  ignominious  punishment,  as  the 
punishment  was  discretionary,  and  the  judgment 
of  the  court,  when  a  humiliating  sacrifice  was  to 
be  made  to  a  supposed  insult  upon  a  foreign  ally, 
on  the  principle  adverted  to,  might  not  be  easily 
satisfied.] 


TRIAL  OF  JOHN   VIST   AND  OTHERS.          377 

I  do  not  wish,  continued  Mr.  Erokine,  to  sec  the 
laws  relaxed;  but  it  would  he  still  worse  to  see 
them  strained  for  any  foreign  power,  however 
deserving,  in  opposition  to  the  liheral  policy  of 
our  ancestors,  and  the  freedom  of  the  I Irit i-h  con- 
stitution, both  of  which  would  be  grossly  violated 
by  a  verdict  against  any  of  the  defendants.  Mr. 
Parry  I  know  personally  to  be  a  literal  gentleman, 
incapable  of  malicious  falsehood,  and  it  has  been 
candidly  admitted  by  the  Attorney-General  himself, 
as  well  as  established  by  proof,  that  the  paragraph 
was  a  literal  narration  of  a  fact  extremely  import- 
ant  to  be  generally  known,  and  which  had,  there- 
fore, been  circulated  by  the  Russia  Company,  for 
the  express  purpose  of  communicating  it  to  the 
mercantile  world.  Thus,  what  related  to  the  edict 
was  strictly  the  fact,  not  enlarged  upon  in  any 
manner  whatsoever;  and  as  to  the  introduction  so 
much  complained  of,  it  was  general  and  just  ob- 
servation, quite  within  the  scope  of  history  upon 
the  transactions  of  the  great  political  world ;  for 
whoever  heard  of  a  history  which  confined  itself 
to  facts  only,  without  the  qualities  and  characters 
which  belonged  to  them  ?  Justice,  too,  should  be 
impartially  administered ;  the  matter  complained 
of  did  not  originate  with  the  Courier,  but  notori- 
ously came  to  it  from  the  Caledonian  Mercury, 
whose  proprietors,  or  publishers,  have  never  been 
questioned  by  the  Crown.  If,  therefore,  the  pro- 


378  EVIDENCE   FOR   THE   DEFENDANTS. 

prietor,  printer,  or  publisher  now  before  you  is  to 
be  held  responsible,  and  deprived  of  liberty  on 
such  an  account  as  this,  our  boasted  liberty  of  the 
press  is  but  an  empty  sound. 


EVIDENCE   FOE   THE   DEFENDANTS. 

Mr.  Forster,  the  governor  of  the  Russia  Com- 
pany, was  called  to  prove  Mr.  Sharp's  letters, 
which  were  brought  by  the  waiter  of  Batson's 
coffee-house,  where  they  had  been  sent  for  the 
information  of  merchants. 

The  Attorney-General  objected  to  their  admissi- 
bility,  but  said  he  waived  the  objection. 

Lord  Kenyon,  however,  disapproving  of  the  pro- 
duction of  the  papers,  the  admission  was  therefore 
taken,  without  reading  the  letters. 


REPLY  OF  THE  ATTORNEY-GENERAL. 


GENTLEMEN  OF  THE  JURY  :  It  is  plain  that  I 
have  not  much  embarrassed  my  learned  friend  bv 
bespeaking  from  him  a  brilliant  speech.  After 
twenty  years  experience  of  him,  I  knew  I  might 
safely  do  it ;  I  knew  also  his  clients  had  bes|x>ken 
it,  and  were  not  likely  to  be  disappointed.  I 
never  desire  to  deprive  defendants  of  their 
defences,  and  the  argument  of  their  learned  counsel 
is  entitled  to  attention  ;  but  I  trust,  that  you,  gen- 
tlemen, will  distinguish  bc-tween  the  charges  which 
the  councils  of  nations  may  have  against  each 
other,  and  the  unauthorized  invectives  of  news- 
papers. These  libels  might  produce  the  very  cold- 
ness  and  indifferences  complained  of.  The  question 
is  just  what  I  stated  it  in  the  opening  to  be, 
namely,  whether  the  paragraph  is  a  libel,  and 
whether  the  defendants  printed  and  published  it. 
In  the  case  of  Mr.  Reeves,  perhaps,  I  hardly  con- 
ducted myself  as  I  ought  to  have  done,  having 
from  delicacy  abstained  in  the  House  of  Commons 
from  taking  any  share  in  the  debate;  whereas,  I 
ought  rather  to  have  followed  the  example  of  Lord 


380      ON  THE  TRIAL  OF  JOHN  VINT  AND  OTHERS. 

Hardwicke,  and  have  spoken  my  sentiments  upon 
it,  and  after  the  address  was  voted,  have  begged 
that  his  Majesty  might  command  the  alleged  libel 
to  be  prosecuted  by  some  other  of  his  servants.  I 
admit  the  paragraph  complained  of  in  the  book  of 
Mr.  Reeves  was  improper,  but  upon  reading  the 
whole  of  it,  I  thought  it  manifest  that  the  author 
had  no  evil  intention.  In  the  present  case  I  have 
no  doubt,  gentlemen,  that  you  will  decide  accord- 
ing to  the  sound  rule  and  principle  of  law,  and 
rather  take  the  noble  and  learned  judge  for  your 
guide  in  that  respect  than  either  Mr.  Erskine  or 
myself. 

As  to  the  punishment,  it  does  not  follow  that  it 
must  be  severe.  The  conviction  is  the  legal  conse- 
quence of  the  offence  against  the  law ;  but  the 
ambassador  of  the  Emperor  at  our  court,  is  a  man 
of  mild  and  amiable  manners,  concerned,  of  course, 
for  the  dignity  of  his  sovereign,  but  greatly  at- 
tached to  the  subjects  of  Great  Britain ;  and 
proper  representations  might  obtain  for  the  defend- 
ants what  the  law,  in  its  just  administration,  could 
not  possibly  confer. 


LORD  CHIEF  JUSTICE  KENYON'S  SUM- 
MING  UP. 


GENTLEMEN  OF  THE  JURY:  I  shall  make  no 
apology  for  any  punishment  which  the  Court  ot 
King's  Bench  has  ever  ordered  any  individual  to 
undergo,  during  the  time  I  have  been  one  of  its 
judges.  They,  and  all  their  proceedings  are  before 
the  public;  they  may  be  brought  before  Parlia- 
ment, and  they  are  liable  to  punishment  them- 
selves in  case  of  misbehavior.  They  are  bound  by 
their  oaths  to  discharge  their  duty  to  the  King  and 
his  subjects,  and  to  discharge  it  conscientiously, 
as  the  King  himself  is  bound  to  do,  who,  by  his 
coronation  oath  is  sworn  in  the  most  solemn  man- 
ner to  administer  justice  in  mercy.  I  shall  say 
nothing,  therefore,  on  the  anticipation  of  justice 
from  the  judges ;  I  trust  they  are  fully  conscious 
of  having  always  discharged  their  duty. 

The  learned  counsel  for  the  defendants  has  told 
you  that  the  situation  of  the  country  is  critical 
and  awful ;  and  I  am  afraid  he  has  drawn  too 
faithful  a  picture  of  some  of  the  causes  to  which 
it  may  be  ascribed. 


382       LORD  KENYON'S  SUMMING  TJP  ON  THE 

That  the  contest  is  left  chiefly  to  our  own  exer- 
tions, and  that  our  nearest  and  dearest  interests 
are  embarked  in  it,  is  most  true.  What  remains 
at  the  foot  of  this  account  I  know  not,  but  the 
whole  seems  now  to  rest  upon  the  Emperor  of 
Russia  and  ourselves. 

The  learned  counsel  has  very  properly  avoided 
all  political  discussions  unconnected  with  the  sub- 
ject, and  I  shall  follow  his  example.  Courts  of 
justice  have  nothing  to  do  with  them,  but  I  admit 
that  his  observations  as  they  regard  the  princes  of 
Europe,  were  relevant  to  the  cause,  and  open  to 
him  to  enlarge  on,  as  illustrations  that  the  press 
could  not  be  free  if  discussions  of  that  nature  were 
held  to  be  illegal ;  but  it  is  pretty  plain  to  me  that 
the  learned  counsel  presented  with  great  dexterity, 
— and,  indeed,  who  is  more  dextrous — the  best  part 
of  his  case,  concealing  from  you  that  which  was 
vulnerable,  drawing  his  arguments  from  materials 
so  very  near  the  subject  as  to  appear  convincing, 
though  differing  in  fact,  when  you  had  freed  your- 
selves from  the  delusion.  What  could  have  in- 
duced the  princes  of  Europe  to  the  conduct  some 
of  them  have  pursued,  I  will  not  venture  to  investi- 
gate ;  but  sitting  in  a  court  of  law,  I  am  bound  to 
say  that  it  does  not  absolve  states  from  enforcing 
a  decent  respect  to  the  magistracies  of  each  other, 
and  to  the  persons  of  sovereigns  executing  the 
law,  etc.  A  breach  of  these  rules  might  produce 


TRIAL   OF   JOHN   VINT   AND  OTHERS.  533 

discord.  In  the  last  century,  when  there  was  less 
connection  between  us  and  the  powers  of  the  con- 
tinent, and  when,  perhaps,  the  assistance  of  the 
court  of  Russia  was  less  important,  the  legislature 
thought  it  wise  to  interpose.  In  the  reign  of 
Queen  Anne,  if  I  mistake  not,  when  an  amlmssa- 
dor  had  been  detained  on  a  civil  suit,  which  was 
complained  of  as  contrary  to  the  law  of  nations, 
an  act  of  Parliament  was  not  only  passed  to  pro- 
tect the  persons  of  foreign  ministers  from  deten- 
tion against  civil  demands,  but  the  act  was  sent 
over  to  the  capital  of  that  kingdom. 

All  governments  rest  mainly  on  public  opinion, 
and  to  that  of  his  own  subjects  every  wise  sover- 
eign will  look.  The  opinion  of  his  subjects  will 
force  a  sovereign  to  do  his  duty,  and  by  that 
opinion  will  he  be  exalted  or  depressed  in  the 
politics  of  the  world.  Our  papers,  it  is  well 
known,  are  not  not  only  circulated  over  Europe,  but 
much  farther ;  and  the  sentiments  they  contain  are 
interesting  and  popular,  so  that  if  poison  apj>ears 
in  them  without  its  antidote,  the  effect  might  be 
fatal  to  ourselves,  as  it  might  be  reasonably  con- 
cluded, that  if  government  winked  at  or  slumbered 
over  such  a  publication,  it  was  disposed  to  adopt 
it  Letters  from  the  consul  to  the  Russia  Com- 
pany were  produced,  and  it  was  proi>osed,  on  the 
part  of  the  defendants,  that  they  should  be 
received.  They  were  not,  however,  read,  and  it 


384       LORD  KENYON'S  SUMMING  UP  ON  THE 

was  well  for  the  government  of  that  company  that 
they  were  not;  they  were  State  papers  and  were 
very  improperly  brought  into  court.  They  related 
to  the  interests  of  a  great  commercial  company, 
whose  concerns  no  person  charged  with  having 
committed  a  misdemeanor  had  any  business  to 
unravel.  There  was  no  power  upon  earth  to  force 
them  here  without  the  consent  of  their  owners, 
and  most  strangely  had  they  mistaken  their  duty 
in  producing  them.  There  was  no  real  interest 
of  any  served  by  their  production,  and  the  interests 
of  the  company,  and  through  theirs,  those  of  the 
commercial  world  might  be  materially  injured  by 
it,  if  it  became  a  precedent. 

As  to  the  paragraph  itself,  gentlemen,  you  have 
heard  it;  the  substance  of  it  is,  that  the  Emperor 
of  Russia  is  a  tyrant  to  his  own  subjects,  and 
ridiculous  in  the  face  of  Europe.  Between  the 
sovereign  and  the  people  of  every  country  there  is 
an  express  or  an  implied  compact  for  a  govern- 
ment of  justice ;  by  which  the  former  is  most 
solemnly  and  emphatically  bound  not  to  be  tyran- 
nical or  unjust;  yet  here  he  is  wantonly  said  to  be 
a  transgressor  against  all  decency  in  the  adminis- 
tration of  his  trust.  I  can  only  say,  that  if  one 
were  so  to  offend  another  in  private  life  in  this 
country,  it  might  be  made  the  subject  of  an  action; 
and  when  these  papers  went  to  Russia,  and  held 
up  this  great  Sovereign  as  being  a  tyrant,  and 


TRIAL   OF   JOHN    VIST    AXD   OTHERS.  385 


ridiculous  over  Euroj>e,  it  might  ternl  to  his  cu 
for  satisfaction  as  for  a  national  affront,  if  it  passed 
un  reprobated  by  our  government  and  in  our  courts 
of  Justice. 

It  is  for  you,  gentlemen  of  the  jury,  who  come 
out  of  that  rank  which  enables  you  to  judge  of  the 
interests  of  the  commercial  world,  to  pronounce 
whether  this  is,  or  is  not,  a  dangerous  publication. 
I  am  bound  by  my  oath  to  declare  my  own 
opinion  ;  and  I  should  forget  my  duty,  if  I  were 
not  to  say  to  you  that  it  is  a  gross  libel. 


The  jury  withdrew,  and,  after  remaining  out  of  court 
nearly  an  hour,  returned  a  verdict  of  guilty  against  all  the 
defendants.  On  the  30th  day  of  May  sentence  was  passed, 
that  the  proprietor  of  the  Courier  be  confined  fix  month* 
in  the  King's  Bench  Prison,  and  pay  a  fine  of  one  huiidrvd 
pounds,  besides  giving  sureties  for  his  good  behavior  for  five 
years.  The  printer  and  publisher  were  each  sentenced  to  one 
mouth's  confinement  in  the  same  prison. 


25  B 


THE 

TKIAL     OF    THOMAS    HAEDY 
FOE  HIGH  TKEASON. 


This  prominent,  and  in  every  way  remarkable  trial,  had 
its  origin  in  the  measures  of  parliamentary  reform  which 
were,  by  the  aid  of  secret  societies,  attempted  to  be  brought 
about  during  the  latter  part  of  the  last  century.  In  the 
year  1794,  several  of  these  societies  were  in  existence  and 
in  active  operation  throughout  England,  among  others,  the 
"  Corresponding  Society,"  and  the  "  Society  for  Constitutional 
Information."  Though  some  of  their  proceedings  and 
printed  addresses  were  of  an  inflammatory  character,  yet 
in  the  main  the  members  and  leaders  were  warmly  devoted  to 
the  government  and  the  constitution. 

No  other  explanation  of  the  conduct  of  the  government  in 
indicting  the  members  of  these  societies  for  high  treason, 
can  be  satisfactorily  given  than  a  foolish  and  causeless  dread 
of  the  influence  of  the  French  Revolution  upon  the  public 
mind  in  England.  Never,  perhaps,  in  the  history  of  any 
free  State,  were  more  frantic  efforts  attempted  on  behalf  of 
government  to  secure  a  conviction  than  in  these  memorable 
"  State  Trials."  Secret  committees  were  appointed  in  both 
Houses  of  Parliament,  upon  whose  reports  the  habeas  cor- 
pus act  was  suspended  to  facilitate  the  prosecutions.  The 
preamble  to  the  bill  suspending  the  writ  recited  that, 
"  whereas,  a  treacherous  and  detestable  conspiracy  has 
been  formed  for  subverting  the  existing  laws  and  constitu- 


TRIAL  OF  THOMAS   HARDY.  3S7 

tion,  and  for  introducing  the  system  of  anarchy  and  confu- 
sion which  has  so  lately  prevailed  in  France,"  etc.  In  addi- 
tion to  thus  declaring  by  act  of  Parliament  that  the  treacher- 
OU8  conspiracy,  which  should  have  been  left  to  the  finding 
of  a  jury,  already  existed,  a  large  mae*  of  testimony  wan  col- 
lected by  the  committee*  just  before  the  trial  of  Hardy,  the 
printed  reports  of  which  had  been  circulated,  from  whirh 
most  of  the  evidence  used  by  the  Crown  ujx»n  the  trial  wm» 
drawn.  Authority  was  also  given  for  the  detention,  without 
bail,  of  persons  then  in  custody  or  who  should  thereafter 
be  committed  on  mere  suspicion  of  being  engaged  in  the  sup- 
posed conspiracy. 

These  legislative  prej>arations  to  secure  a  judicial  convic- 
tion having  been  completed,  the  grand  jury  for  the  county 
of  Middlesex  found  an  indictment  for  high  treason  against 
twelve  members  of  the  reform  societies,  charging  them  with 
having  conspired  to  call  a  convention  for  the  purpose  of  ef- 
fecting a  revolution. 

The  indictment  charged,  in  substance,  that  the  prisoner*, 
being  subjects  of  our  lord  the  King,  not  having  the  fear  of 
God  in  their  la-arts,  nor  weighing  the  duty  of  their  allegiance, 
but  being  moved  and  seduced  by  the  instigation  of  the  devil, 
as  false  traitors  against  our  said  lord  the  King,  th  -ir  supreme, 
true,  lawful,  and  undoubted  lord,  and  wholly  withdrawing  the 
cordial  love  and  true  and  due  obedience  which  every  true 
and  faithful  subject  of  our  said  lord  the  King  should  and  of 
right  ought  to  bear  toward  our  said  lord  the  King,  and  con- 
triving, and  with  all  their  strength  intending,  traitorously  to 
break  and  disturb  the  peace  and  common  tranquility  of  this 
kingdom  of  Great  Britain,  and  to  stir,  move,  and  excite  insur- 
rection, rebellion,  and  war  against  our  said  lord  the  King  within 
this  kingdom,  and  to  subvert  and  alter  the  legislature,  rule,  aud 
government  now  duly  and  happily  established  in  this  kingdom, 
and  to  depose  our  said  lord  the  King  from  his  royal  state,  title, 
power,  and  government  of  this  kingdom,  and  to  bring  and  put 
our  .-aid  lord  the  King  to  death,  on  the  first  day  of  March,  in  the 


388  TRIAL   OF    THOMAS    HARDY. 

thirty-third  year  of  the  reign  of  our  Sovereign  lord  the  now 
King,  and  on  divers  other  days  and  times,  maliciously  and 
traitorously,  with  force  and  arms,  etc.,  did  amongst  them- 
selves, and  together  with  divers  other  false  traitors,  to  the  said 
jurors  unknown,  conspire,  compass,  imagine,  and  intend  to 
stir  up,  move,  and  excite  insurrection,  rebellion,  and  war 
against  our  said  lord  the  King,  within  this  kingdom  of  Great 
Britain,  and  to  subvert  and  alter  the  legislature,  rule,  and 
government  now  duly  and  happily  established  within  this 
kingdom  of  Great  Britain,  and  to  depose  our  said  lord  the 
King  from  the  royal  state,  title,  power,  and  government  of 
this  kingdom,  and  to  bring  and  put  our  said  lord  the  King  to 
death.  And  that  to  fulfill,  perfect,  and  bring  to  effect  their 
most  evil  and  wicked  treason  and  treasonable  compassiugs  and 
imaginations  aforesaid,  they,  with  force  and  arms,  maliciously 
and  traitorously  did  meet,  conspire,  consult,  and  agree  among 
themselves,  and  together  with  divers  other  false  traitors,  to 
the  said  jurors  unknown,  to  cause  and  procure  a  convention 
and  meeting  of  divers  subjects  of  our  said  lord  the  King  to  be 
assembled  and  held  within  this  kingdom,  with  intent  and  in 
order  that  the  persons  to  be  assembled  at  such  convention  and 
meeting  should  and  might  wickedly  and  traitorously,  without 
and  in  defiance  of  the  authority,  and  against  the  will  of  the 
Parliament  of  this  kingdom,  subvert  and  alter,  and  cause  to 
be  subverted  and  altered,  the  legislature,  rule,  and  government 
now  duly  and  happily  established  in  this  kingdom,  and  depose 
and  cause  to  be  deposed  our  said  lord  the  King  from  the  royal 
state,  title,  power,  and  government  thereof.  And  further  to 
fulfill,  perfect,  and  to  bring  to  effect  their  most  evil  and 
wicked  treason  and  treasonable  com  passings  and  imaginations 
aforesaid,  and  in  order  the  more  readily  and  effectually  to 
assemble  such  convention  and  meeting  as  aforesaid,  for  the 
traitorous  purposes  aforesaid,  and  thereby  to  accomplish  the 
same  purposes,  they,  together  with  divers  other  false  trai- 
tors, to  the  jurors  unknown,  maliciously  and  traitorously 
did  compose  and  write,  and  did  then  and  there  maliciously 


TRIAL  OF  THOMAS   HARDY.  389 

and  traitorously  cause  to  be  composed  and  written  divert 
books,  pamphlets,  letters,  instructions,  resolution*,  onlerx, 
declarations,  addresses,  and  writing,  and  did  then  and  there 
maliciously  and  traitorously  puhli.«h,  and  did  then  and  there 
maliciously  and  traitorously  cause  to  be  published,  divers 
other  books,  pamphlet*,  letters,  instructions,  resolutions,  orders, 
declarations,  addresses,  and  writing,  the  said  L><>k-,  pamph- 
lets, letters,  instructions,  resolutions,  orders,  declarations,  ad- 
dre»rn,  and  writings  so  respectively  composed,  written,  pub- 
lished, and  caused  to  be  composed,  written,  ami  published, 
pur]>orting  and  containing  therein,  among  other  things,  in- 
citements, encouragements,  and  exhortations  to  move,  induce 
and  persuade  the  subjects  of  our  said  lord  the  Kingtochoone, 
depute,  and  send,  and  cause  to  be  chosen,  deputed,  and  -  nt, 
persons  as  delegates,  to  eoni|H>se  and  constitute  such  conven- 
tion and  meeting  as  aforesaid,  to  be  so  holden  as  aforesaid, 
for  the  traitorous  purposes  aforesaid.  And  further  to  fulfill, 
perfect,  and  bring  to  effect  their  most  evil  and  wicked  treason 
and  treasonable  compassing-  and  imaginations  aforesaid,  and 
in  oxder  the  more  readily  and  effectually  to  assemble  such 
convention  and  meeting  as  aforesaid,  for  the  traitorous  pur- 
poses aforesaid,  and  thereby  to  accomplish  the  same  purposes, 
they  did  meet,  consult,  and  deliberate  among  themselves,  and 
together  with  divers  other  false  traitors,  to  the  said  jurors  un- 
known, of  and  concerning  the  culling  and  assembling  such 
convention  and  meeting  as  aforesaid,  for  the  traitorous  pur- 
poses aforesaid,  and  how,  when,  and  where  such  convention 
and  meeting  should  be  assembled  and  held,  and  by  what  means 
the  subjects  of  our  said  lord  the  King  should  and  might  he 
induced  and  moved  to  send  persons  as  delegates  to  compose 
and  constitute  the  same.  And  further  to  fulfill,  perfect, 
and  bring  to  effect  their  most  evil  and  wicked  treason  and 
treasonable  compassings  and  imaginations  aforesaid,  and  in 
order  the  more  readily  and  effectually  to  assemble  such  con- 
vention  and  meeting  as  aforesaid,  for  the  traitorous  pur- 
poses aforesaid,  and  thereby  to  accomplish  the  same  pur- 


390  TRIAL   OF   THOMAS   HARDY. 

poses,  maliciously  and  traitorously  did  consent  and  agree  that 
the  said  Jeremiah  Joyce,  John  Augustus  Bonney,  John 
Home  Tooke,  Thomas  "Wardle,  Matthew  Moore,  John  Thel- 
wall,  John  Baxter,  Richard  Hodgson,  one  John  Lovett,  one 
William  Sharp,  and  one  John  Pearson,  should  meet,  confer, 
and  co-operate  among  themselves,  and  together  with  divers 
other  false  traitors,  to  the  jurors  unknown,  for  and  toward  the 
calling  and  assembling  such  convention  and  meeting  as  afore- 
said, for  the  traitorous  purposes  aforesaid.  And  further  to 
fulfill,  perfect,  and  bring  to  effect,  their  most  evil  and  wicked 
treason  and  treasonable  compassings  and  imaginations  afore- 
said, they  maliciously  and  traitorously  did  cause  and  procure 
to  be  made  and  provided,  and  did  then  and  there  maliciously 
and  traitorously  consent  and  agree  to  the  making  and  provid- 
ing of  divers  arms  and  offensive  weapons,  to-wit :  guns,  mus- 
kets, pikes,  and  axes,  for  the  purpose  of  arming  divers  subjects 
of  our  said  lord  the  King,  in  order  and  to  the  intent  that  the 
same  subjects  should  and  might  unlawfully,  forcibly,  and 
traitorously  oppose  and  withstand  our  said  lord  the  King  in 
the  due  and  lawful  exercise  of  his  royal  power  and  authority 
in  the  execution  of  the  laws  and  statutes  of  this  realm,  and 
should  and  might  unlawfully,  forcibly,  and  traitorously  sub- 
vert and  alter,  and  aid  and  assist  in  subverting  and  altering, 
without  and  in  defiance  of  the  authority  and  against  the  will 
of  the  Parliament  of  this  kingdom,  the  legislature,  rule,  and 
government  now  duly  and  happily  established  in  this  king- 
dom, and  depose,  and  aid  and  assist  in  deposing,  our  said  lord 
the  King  from  the  royal  state,  title,  power  and  government 
of  this  kingdom.  And  further  to  fulfill,  perfect,  and  bring  to 
effect  their  most  evil  and  wicked  treason  and  treasonable  com- 
passings and  imaginations  aforesaid,  they  with  force  and 
arms  maliciously  and  traitorously  did  meet,  conspire,  con- 
sult, and  agree  among  themselves  to  raise,  levy,  and  make 
insurrection,  rebellion,  and  war  within  this  kingdom  of 
Great  Britain,  against  our  said  lord  the  King.  And  further 
to  fulfill,  perfect,  and  bring  to  effect  their  most  evil  and 


TRIAL  OF  TH03IAS    HARDY.  391 

wicked  treason  and  treasonable  compassings  ami  imagination* 
aforesaid,  they  maliciously  and  traitorously  did  meet,  con- 
spire, consult  and  agree  amongst  themselves,  and  together 
with  divers  other  false  traitors,  to  the  jurors  unknown,  unlaw- 
fully, wickedly,  and  traitorously  to  subvert  and  alter,  and 
cause  to  be  subverted  and  altered,  the  legislature,  rule,  and 
government  now  duly  and  happily  established  in  this  king- 
dom, and  to  dejxise  and  cause  to  be  dej>oi»ed  our  said  lord 
the  King  from  the  royal  state,  title,  jxwer,  and  governments 
of  this  kingdom.  And  further  to  fulfill,  perfect,  and  bring 
to  effect  their  most  evil  and  wicked  treason  and  treasonable 
comparing  and  imaginations  aforesaid,  and  in  order  the 
more  readily  and  effectually  to  bring  about  such  subversion, 
alteration,  and  despotism  us  la-t  aforesaid,  they  maliciously 
and  traitorously  did  prepare  and  compose,  and  did  then  and 
there  maliciously  and  traitorously  cause  and  procure  to  be 
prepared  and  composed,  divers  books,  pamphlets,  letters, 
declarations,  instructions,  resolutions,  orders,  addresses,  ami 
writings,  and  did  then  and  there  maliciously  and  traitorously 
publish  and  disperse,  and  did  then  and  there  maliciously  and 
traitorously  cause  and  procure  to  be  published  and  dispersed, 
divers  other  books,  pamphlets,  letters,  declarations,  instruc- 
tions, resolutions,  orders,  addresses,  and  writings  to  m* 
pectively  prepared,  composed,  published,  disj>ersod,  and 
caused  to  be  prepared,  composed,  published,  and  dispersed,  as 
last  aforesaid,  purporting  and  containing  therein,  amongst 
other  things,  incitements,  encouragements,  and  exhortations, 
to  move,  induce,  persuade  the  subjects  of  our  said  lord  and 
King  to  aid  and  assist  in  carrying  into  effect  such  traitorous 
subversion,  alteration,  and  deposition  as  last  aforesaid,  and 
also  containing  therein,  amongst  other  things,  information, 
instructions,  and  directions  to  the  subjects  of  our  said  lord 
the  King,  how,  when,  and  upon  what  occasions  the  traitor- 
ous purposes  last  aforesaid  should  and  might  be  carried  into 
effect.  And  further  to  fulfill,  perfect,  and  bring  to  effect 
their  most  evil  and  wicked  treason  and  treasonable  com- 


392  TRIAL    OF    THOMAS    HARDY. 

passings  and  imaginations  aforesaid,  they  did  maliciously  and 
traitorously  consent  and  agree  to  the  procuring  and  providing 
arms  and  offensive  weapons,  to-wit :  guns,  muskets,  pikes, 
and  axes,  therewith  to  levy  and  wage  war,  insurrection,  and 
rebellion  against  our  said  lord  the  King  within  this  kingdom, 
against  the  duty  of  their  allegiance,  against  the  peace  of  our 
said  lord  the  now  King,  his  crown  and  dignity,  and  against 
the  form  of  the  statute  in  that  case  made  and  provided. 


Mr.  Erskine  and  Mr.  Gibbs,  afterwards  Attorney-General 
and  Chief  Justice  of  the  Common  Pleas,  were  assigned  as 
counsel  for  the  prisoners.  The  prisoners  having  requested  a 
separate  trial,  the  Attorney-General  decided  to  proceed  first 
with  the  case  of  Thomas  Hardy,  a  shoemaker,  against  whom 
he  was  most  hopeful  of  securing  a  verdict. 

The  trial  began  at  the  session  house  in  the  Old  Bailey,  on 
the  28th  of  October,  1794,  and  continued  until  the  5th  of 
November,  before  a  special  commission  of  oyer  and  termiuer, 
Lord  Chief  Justice  Eyre  presiding. 

The  Attorney-General,  Sir  John  Scott,  afterwards  Lord 
Eldon,  opened  for  the  Crown,  with  a  speech  of  nine  hours 
duration.  So  prolonged  was  his  address  that,  though  the 
trial  proceeded  until  midnight,  but  little  of  the  evidence  for 
the  Government  had  been  adduced.  It  was  therefore  neces- 
sary to  adjourn  from  day  to  day,  it  being  the  first  trial  for 
high  treason  in  England  which  had  not  been  closed  at  a 
single  sitting.  The  court  assembled  at  nine  in  the  morning 
and  continued  in  session  until  past  midnight.  The  case  for 
the  Crown  occupied  Tuesday,  "Wednesday,  Thursday  and 
Friday,  and  the  attention  of  the  counsel  for  the  prisoner 
being  thus  constantly  occupied,  not  a  moment's  time  was 
offered  for  arranging  and  preparing  their  defence.  When 
the  court  therefore,  was  about  adjourning  at  two  o'clock 


TRIAL  OF  THOMAS  HARDY.        393 

.Saturday  morning,  the  evidence  for  the  Crown  being  almost 
closed,  thus  throwing  ujwn  Mr.  Krskine  the  neceeaity  of 
opening  the  ca.se  for  the  prisoner  at  nine  o'clock  the  fame 
morning,  the  following  proceedings  took  place: 

Mr.  Erskine.  My  lords,  this  is  the  fourth  day 
that  my  friend  Mr.  Gibbs  and  myself  have  stood 
in  a  very  anxious  situation ;  there  luis  been  a  most 
voluminous  body  of  written  evidence,  all  of  which 
has  not  been  printed ;  copies  of  that  part  which  is 
imprinted  have  not  as  yet  reached  me:  there  have 
been  two  days  spent  in  hearing  parol  evidence; 
and  we,  being  but  two,  assigned  as  counsel  for  the 
prisoner,  have  been  obliged  to  be  constantly  en- 
gaged in  court,  in  cross-examining  the  witnesses 
for  the  Crown ;  and  your  lordship  very  well  know, 
that  the  cross-examination  of  the  witnesses  presents 
an  imj)ortant  feature  in  our  case  on  the  part  of  the 
prisoner,  a  great  deal  of  which  has  fallen  UJHMI  me: 
your  lordships  must  be  sensible  that  it  was  impos- 
sible I  could,  at  the  time  of  cross-examining  a 
witness,  take  any  particular  note  of  what  he  had 
said.  When  the  evidence  for  the  Crown  was  near 
closing,  I  humbly  requested  of  your  lordships  the 
indulgence  of  an  hour  or  two  to  look  over  the 
papers;  your  lordships  were  pleased  to  grant  my 
request,  which  I  considered  as  a  personal  civility 
to  myself;  but  I  was  prevented,  by  extreme  sick- 
new,  from  availing  myself  of  those  two  hours,  for  I 
was  indeed  so  ill,  that  nothing  less  than  a  case  of 


394  TRIAL   OF   THOMAS   HARDY. 

this  magnitude  could  have  brought  me  into  court. 
Since  that  time  I  have  not  had  natural  rest,  not 
having  got  home  till  between  two  and  three  o'clock 
in  the  morning,  and  having  been  here  again  at 
nine;  so  that  I  can  say  with  a  safe  conscience,  I 
have  not  had  an  opportunity  of  even  casting  my 
eye  upon  any  part  of  the  evidence,  though  I  trust 
I  have  something  of  the  general  result  of  it  in  my 
mind.  I  should  hope,  under  these  circumstances, 
that  the  prisoner  might  be  indulged  with  some 
opportunity  for  my  friend  Mr.  Gibbs  and  myself 
to  arrange  our  papers,  and  consider  them  together 
as  counsel  for  the  prisoner,  before  we  are  called 
upon  to  make  our  defence.  It  is  necessary  to  do 
this,  not  for  my  address  to  the  jury  only,  but  that, 
when  I  do  address  them,  I  may  present  to  them 
properly  the  prisoner's  case,  which  depends  much 
upon  the  arrangement  of  the  evidence.  I  feel  my- 
self in  no  condition  to  do  this,  either  in  a  manner 
respectful  to  the  court,  or  for  the  safety  of  the 
prisoner.  I  do  not  wish  to  propose  any  particular 
time,  but  merely  to  leave  it  to  the  indulgence  and 
justice  of  the  court,  perfectly  sure,  that  when  I 
leave  it  there,  I  leave  it  in  a  safe  place. 

Lord  Chief  Justice  Eyre.  I  feel  the  weight  of 
your  observations,  of  the  difficulty  under  which 
you  labor,  in  an  extraordinary  case,  which  can 
hardly  be  judged  of  by  the  common  rules  on  which 
we  proceed  in  cases  of  this  nature;  the  court  are 


TRIAL  OF  THOMAS   HARDY.  895 

of  a  disposition  to  give  you  all  the  indulgence  they 
possibly  can,  because  there  is  a  vast  mass  of  evi- 
dence ;  the  case  arises  out  of  the  evidence,  and  it 
is  fit  the  case  should  be  thoroughly  canvassed.  At 
the  same  time,  it  is  certainly  notorious  that  the 
great  bulk  of  that  evidence,  has  been  in  print  a 
great  while,  and  I  cannot  believe  that  it  has  not 
been  very  well  considered  as  far  as  it  has  been  in 
print ;  I  am  sure  that  must  be  understood. 

Now,  I  will  tell  you  very  fairly,  if  the  question 
was  only  the  personal  accommodation  of  yourself 
and  Mr.  Gibbs,  at  the  expense  of  the  personal  con- 
venience of  myself,  my  lord,  and  my  brothers,  I 
am  quite  sure  we  should  have  no  difficulty  in  the 
sacrifice  of  our  personal  convenience  ;  but  there  is 
a  great  deal  more  in  the  case:  we  have  a  jury  who 
have  been  thrown  into  the  most  arduous  service 
that  ever  I  saw  jury  engaged  in  ;  they  have  borne 
it  in  a  manner  that  does  them  infinite  honor,  and 
I  have  no  doubt,  that,  as  far  as  it  is  necessary 
that  they  should  continue  in  the  situation  they  are 
in,  they  will  bear  it  cheerfully.  I  have  seen  such 
a  specimen  of  their  behavior,  that  I  cannot  en- 
tertain a  doubt  of  that;  but  that  we  could  give 
you  an  absolute  suspension  of  the  business  in  the 
situation  that  we  are  in,  ui>on  the  terms  of  keeping 
the  jury  in  the  situation  in  which  they  must  be 
kept,  is  a  thing  that  it  is  perfectly  impossible  for 
us  to  think  of.  Now  this  occurs  to  me,  my 


396  TRIAL   OF   THOMAS    HARDY. 

brothers  will  consider  of  it ;  I  merely  throw  it  out 
for  their  consideration.  You  are  men  of  honor, 
you  will  tell  us  whether  you  really  do  mean  to  call 
witnesses,-  or  to  take  the  case  upon  the  ground 
upon  which  it  is  already  made:  if  you  mean  to 
call  witnesses,  you  may  call  them  to-morrow ;  you 
may  go  on  with  the  case  as  far  as  it  will  be  neces- 
sary for  you  to  go  on,  to  fill  up  all  the  time  that 
ought  to  be  filled  up,  leaving  only  a  part  of  Sun- 
day, the  common  interval  of  rest,  without  our 
keeping  the  jury  in  a  situation  to  do  nothing.  If 
you  do  not  mean  to  call  witnesses,  but  mean  to 
leave  the  case  with  the  observations  which  arise 
upon  the  evidence  that  is  before  the  court,  we  will 
go  as  far  as  we  can ;  but  if  witnesses  are  to  be  call- 
ed, and  you  desire  not  to  address  the  jury  imme- 
diately, you  must  immediately  begin  to  examine 
your  witnesses,  as  soon  as  they  have  closed  on  the 
part  of  the  Crown ;  and  fill  up  the  time  that  will 
intervene  between  that  time  and  the  time  when  you 
will  be  ready  to  go  on  with  your  address  to  the 
jury.  In  that  way  I  think  we  shall  put  the  jury 
under  no  unnecessary  hardships,  because,  whether 
they  hear  the  witnesses  before  or  after  the  speech, 
is  a  matter  of  no  importance  to  them. 

Mr.  Erskine.  I  should  be  afraid  to  take  upon 
myself  the  experiment  of  trying  a  cause,  par- 
ticularly of  this  magnitude,  in  a  manner  totally 
different  from  any  that  has  ever  occurred  in  the 


TRIAL  OF  THOMAS  HARDY.        397 

annals  of  this  country.  I  should  be  afraid  to  begin 
an  experiment  of  that  sort,  more  especially  when 
counsel  in  a  capital  case;  because  evidence  conies 
with  infinitely  more  weight,  by  which  I  mean  the 
proper  weight  evidence  ought  to  have,  from  the 
bearing  of  it  upon  the  case  when  it  is  first  stated 
by  the  counsel  who  is  to  supi>ort  his  cause  by  it; 
much  of  the  effect  of  evidence  is  lost,  and  much  of 
it  distorted  by  the  cross-examinations  of  counsel, 
until  the  true  bearing  of  it  IMS  been  explained.  I 
do  not  propose  what  can  be  properly  termed  a 
suspension  of  the  trial,  or  which  can  throw  any 
sort  of  inconvenience  upon  the  jury,  which  would, 
I  am  sure,  give  me  as  much  pain  as  anybody  in 
the  world;  but  your  lordships  will  recollect  that 
the  Attorney-General  in  open  ing  his  case,  I  am  sure 
I  think  as  highly  as  is  possible  of  his  ability,  and 
of  the  manner  in  which  he  performed  his  duty,  but 
he  found  it  necessary  to  spend  nine  hours  in  the 
opening  of  his  case.  The  prisoner  most  unquestiona- 
bly may  expect  an  equal  time,  if  it  were  necessary, 
for  his  counsel  to  take  the  same  course  in  opening 
his;  and  if  I  were  thrown  upon  it  in  the  present 
moment,  not  having  a  sufficient  recollection  of  the 
great  points  of  the  evidence,  if  I  were  put  upon 
speaking  to  the  jury,  at  this  moment,  I  must  take 
that  course  of  reading  at  great  length,  great  num- 
bers of  papers;  whereas,  if  I  had  the  opportunity 
of  a  few  hours  more,  which  is  the  nature  of  my 


398  TRIAL    OF   THOMAS   HARDY. 

application,  merely  to  arrange  my  papers,  and  to 
select  such  as,  in  the  judgment  of  my  learned  friend 
and  myself,  we  shall  think  sufficient  for  our  defence, 
it  would  save  time — 

Lord  Chief  Justice  Eyre.  I  dread  the  explana- 
tion of  a  few  hours.  Mr.  Attorney-General,  what 
further  evidence  have  you  to  produce  ? 

Mr.  Attorney- General.  I  think  my  evidence  will 
not  take  up  more  than  forty  minutes. 

Mr.  Erskine.  I  do  not  know  whether  your  lord- 
ships mean  to  sit  on  Sunday  ? 

Lord  Chief  Justice  Eyre.  I  shall  sit  late  on 
Saturday  night;  I  say  nothing  of  Sunday. 

Mr.  Erskine.  I  am  literally  at  this  moment,  and 
have  been  all  day  yesterday  and  to-day,  so  ex- 
tremely unwell,  that  I  do  not  think  if  I  were  called 
upon  to  speak  for  any  length  of  time,  I  could  pos- 
sibly support  it. 

Lord  Chief  Justice  Eyre.  I  can  easily  think  that 
to  be  the  case,  and  it  is  a  circumstance  I  am  ex- 
tremely sorry  for;  on  the  other  hand,  I  cannot 
hazard  the  situation  of  the  jury. 

Mr.  Erskine.  I  should  be  sorry  to  put  the  jury 
to  any  inconvenience*.  I  do  not  shrink  from  the 
business,  I  am  extremely  willing  to  endure  any- 
thing, but  I  assure  your  lordship  that  my  health  is 
extremely  suffering  by  it. 

Lord  Chief  Justice  Eyre.  What  is  it  you  ask 
for? 


TRIAL  OF   THOMAS  HARDY.  399 

J/r.  Erskine.  As  I  stated  before,  the  Attorney- 
General  found  it  necessary  to  consume  nine  hours; 
I  shall  not  consume  half  that  time,  I  think  at  least 
I  shall  not  consume  half  that  time,  if  I  have  an 
opportunity  of  doing  that  which  I  humbly  request 
of  the  court,  that  is,  of  arranging  the  materials  in 
such  a  manner,  that  I  should  be  able  to  make  only 
those  observations  which  occur  to  me  to  be  the 
fittest  to  be  made,  us  counsel  for  the  prisoner. 

Lord  Chief  Justice  Eyre.  We  have  offered  you 
an  expedient;  neither  of  you  say  to  us  whether 
you  can  accept  it. 

J/r.  Gibbs.  With  respect  to  that  expedient,  I 
have  no  doubt  to  say  that  it  is  utterly  impossible, 
for  Mr.  Erskine  and  myself,  in  the  situation  in 
which  we  are,  respecting  ourselves,  respecting  the 
court,  and  respecting  the  public  and  the  jury,  it  is 
utterly  impossible  for  us  to  think  of  that,  because, 
if  anything  adverse  should  happen  when  we  have 
taken  such  a  line,  the  imputation  will  lie  u{>on  us. 

Lord  Chief  Justice  Eyre.  That  it  may  not  be 
in  your  judgment  a  desirable  thing,  is  very  well; 
but  that  there  is  any  other  objection  to  it,  I  can- 
not agree  to.  Whether  the  case  is  taken  upon 
the  summing  up  of  the  evidence,  or  whether  it  is 
taken  UJKHI  the  opening  of  the  evidence,  is,  as  to 
all  legal  purposes,  the  same;  I  can  see  no  differ- 
ence; it  may  make  a  vast  difference  in  your  judg- 
ment, as  to  what  is  the  best  manner  and  the  best 


400  TRIAL   OF   THOMAS   HARDY. 

method  of  laying  your  case  before  the  jury; 
undoubtedly  we  are  assisting  the  prisoner  by  put- 
ting the  counsel  in  a  situation  to  do  his  business  in 
the  best  manner,  by  proposing  it  thus;  whereas, 
if  they  were  put  upon  doing  it  in  the  ordinary 
course,  they  would  lie  under  a  peculiar  difficulty 
and  disadvantage.  Mr.  Erskine  has  not  yet  told 
us  what  he  asks. 

Mr.  Erskine.  Since  it  is  put  expressly  to  me,  I 
shall  propose,  unless  the  jury  profess  it  to  be  a 
very  serious  inconvenience  to  them,  that  instead 
of  coming  in  the  morning  at  the  time  we  generally 
come,  our  coming  should  be  at  twelve  o'clock,  so 
that  the  Attorney-General  can  finish  at  one.  Mr. 
Gibbs  will  have  the  goodness  to  take  a  note  of  the 
few  facts  stated  by  the  witnesses,  and  I  shall  be 
able  by  that  time  to  come. 

Lord  Chief  Justice  Eyre.  Then  suppose  we  ad- 
journ to  eleven  o'clock. 

Mr.  Gibbs.  We  conceive  your  lordships  will 
permit  Mr.  Erskine  to  open  the  case  of  Mr.  Hardy ; 
then  our  witnesses  will  be  examined,  and  then  I 
shall  be  heard  after  our  witnesses. 

Lord  Chief  Justice  Eyre.  You  will  conduct  your 
case  in  the  manner  you  think  best  for  the  interest 
of  your  client. 

Mr.  Erskine.  I  should  be  glad  if  your  lordships 
would  allow  another  hour. 

Lord  Chief  Justice  Eyre.  I  feel  so  much  for  the 


TRIAL   OF   THOMAS   HARDY.  401 

situation  of  the  jury,  that  on  their  account  I  can- 
not think  of  it. 

Mr.  Erskmc.  My  lord,  I  nevea  was  placed  in 
such  a  situation  in  the  whole  course  of  my  prac- 
tice before,  with  so  many  gentlemen  oil  the  other 
side;  however,  I  don't  shrink  from  it. 

One  of  the  Jury.  My  lord,  we  are  extremely 
willing  to  allow  Mr.  Erskine  another  hour,  if  your 
lordship  thinks  proper. 

Lord  Chief  Justice  Eyre.  As  the  jury  ask  it  for 
you,  I  will  not  refuse  you. 


Accordingly  an  adjournment  was  had  until  twelve  o'clock 
of  the  same  day,  when  two  hours  being  spent  in  finishing 
the  evidence  for  the  Crown,  Mr.  Erskiue  came  into  court, 
and  addressed  the  jury  as  followi: 


26  B 


SPEECH    OF    ME.    EESKINE. 


GENTLEMEN  OF  THE  JURY:  Before  I  proceed 
to  the  performance  of  the  momentous  duty  which 
is  at  length  cast  upon  me,  I  desire  in  the  first  place 
to  return  my  thanks  to  the  judges,  for  the  indul- 
gence I  have  received  in  the  opportunity  of  ad- 
dressing you  at  this  later  period  of  the  day,  than 
the  ordinary  sitting  of  the  court ;  when  I  have 
had  the  refreshment  which  nature  but  too  much 
required,  and  a  few  hours'  retirement,  to  arrange  a 
little  in  my  mind  that  immense  matter,  the  result 
of  which  I  must  now  endeavor  to  lay  before  you. 
I  have  to  thank  you  also,  gentlemen,  for  the  very 
condescending  and  obliging  manner  in  which  you 
so  readily  consented  to  this  accommodation ;  the 
court  could  only  speak  for  itself,  referring  me  to 
you,  whose  rests  and  comforts  had  been  so  long 
interrupted.  I  shall  always  remember  your 
kindness. 

Before  I  advance  to  the  regular  consideration  of 
this  great  cause,  either  as  it  regards  the  evidence  or 
the  law,  I  wish  first  to  put  aside  all  that  I  find  in 
the  speech  of  my  learned  friend,  the  Attorney-Gen- 


TRIAL   OF   THOMAS    HARDY.  403 

eral,  which  is  either  collateral  to  the  merits,  or  in 
which  I  can  agree  with  him.  First,  then,  in  the 
name  of  the  prisoner,  and  shaking  his  sentiments, 
which  are  well  known  to  he  my  own  also,  I  con- 
cur in  the  eulogium  which  you  have  heard  upon 
the  constitution  of  our  wise  forefathers.  But  be- 
fore the  eulogium  can  have  any  just  or  useful  a|>- 
plication,  we  ought  to  reflect  upon  what  it  is  which 
entitles  this  constitution  to  the  praise  so  justly 
bestowed  upon  iL  To  say  nothing  at  present  of 
its  most  essential  excellence,  or  rather  the  very  soul 
of  it,  viz. :  the  share  the  j>eople  ought  to  have  in 
their  government,  hy  a  pure  representation,  for  the 
assertion  of  which  the  prisoner  stands  arraigned  as 
a  traitor  before  you,  what  is  it  that  distinguishes 
the  government  of  England  from  the  most  desjx>tic 
monarchies  ?  What,  but  the  security  which  [the 
subject  enjoys  in  a  trial  and  judgment  by  his 
equals  ;  rendered  doubly  secure  as  being  part  of  a 
system  of  law  which  no  expediency  can  warp,  and 
which  no  power  can  abuse  with  impunity? 

The  Attorney-General's  second  preliminary  ob- 
servation I  equally  agree  to.  I  anxiously  wish 
with  him  that  you  shall  bear  in  memory  the 
anarchy  which  is  desolating  France.  Before  I  sit 
down,  I  may  perhaps,  in  my  turn,  have  occasion 
to  reflect  a  little  upon  its  probable  causes ;  but  wait- 
ing a  season  for  such  reflections,  let  us  first  consider 
what  the  evil  is  which  has  been  so  feelingly  lament- 


404  SPEECH   OF   MR.    ERSKINE   ON   THE 

ed,  as  having  fallen  on  that  unhappy  country.  It 
is,  that  under  the  dominion  of  a  barbarous  state 
necessity,  every  protection  of  law  is  abrogated  and 
destroyed;  it  is,  that  no  man  can  say,  under  such 
a  system  of  alarm  and  terror,  that  his  life,  his  lib- 
erty, his  reputation,  or  any  one  human  blessing, 
is  secure  to  him  for  a  moment ;  it  is,  that,  if  accused 
of  federalism,  or  moderatism,  or  incivism,  or  of  what- 
ever else  the  changing  fashions  and  factions  of  the 
day  shall  have  lifted  up  into  high  treason  against 
the  state,  he  must  see  his  friends,  his  family,  and 
the  light  of  heaven,  no  more;  the  accusation  and 
the  sentence  being  the  same,  following  one  another 
as  the  thunder  pursues  the  flash.  Such  has  been 
the  state  of  England,  such  is  the  state  of  France ; 
and  how  then,  since  they  are  introduced  to  you  for 
application,  ought  they  in  reason  and  sobriety  to 
be  applied  ?  If  .  this  prosecution  has  been  com- 
menced, as  is  asserted,  to  avert  from  Great  Britain 
the  calamities  incident  to  civil  confusion,  leading 
in  its  issues  to  the  deplorable  condition  of  France, 
I  call  upon  you,  gentlemen,  to  avert  such  calamity 
from  falling  upon  my  client,  and  through  his  side 
upon  yourselves  and  upon  our  country.  Let  him 
not  suffer  under  vague  expositions  of  tyrannical 
laws,  more  tyrannically  executed.  Let  not  him  be 
hurried  away  to  pre-doomed  execution,  from  an 
honest  enthusiasm  for  the  public  "safety.  I  ask  for 
him  a  trial  by  this  applauded  constitution  of  our 


TRIAL  OF  THOMAS  HARDY.        405 

• 

country:  I  call  upon  you  to  administer  the  law  to 
him,  according  to  our  own  wholesome  institutions, 
by  its  strict  and  rigid  letter ;  however  you  may 
eventually  disapprove  of  any  part  of  his  conduct, 
or  viewing  it  through  a  false  medium,  may  think 
it  even  wicked,  I  claim  for  him,  as  a  subject  of 
England,  that  the  law  shall  decide  uj>on  its  crimi- 
nal denomination;  I  protest,  in  his  name,  against 
all  appeals  to  speculations  concerning  consequences, 
when  the  law  commands  us  to  look  only  to  inten- 
tions. If  the  State  be  threatened  with  evils,  let 
Parliament  administer  a  prospective  remedy,  but 
let  the  prisoner  hold  his  life  under  the  law. 

Gentlemen,  I  ask  this  solemnly  of  the  court, 
whose  justice  I  am  persuaded  will  afford  it  to  me ; 
I  ask  it  more  emphatically  of  you,  the  jury,  who 
are  called  upon  your  oaths  to  make  a  true  deliver- 
ance of  your  countryman,  from  this  charge;  but 
lastly,  and  chiefly,  I  implore  it  of  Him  in  whose 
hands  are  all  the  issues  of  life;  whose  humane  and 
merciful  eye  expands  itself  over  all  the  transactions 
of  mankind;  at  whose  command  nations  rise,  and 
fall,  and  are  regenerated;  without  whom  not  a 
sparrow  falleth  to  the  ground;  I  implore  it  of 
God  himself,  that  He  will  fill  your  minds  with  the 
spirit  of  justice  and  of  truth;  so  that  you  may  be 
able  to  find  your  way  through  the  labyrinth  of 
matter  laid  before  you,  a  labyrinth  in  which  no 
man's  life  was  ever  before  involved,  in  the  annals 


406     SPEECH  OF  MR.  EESKINE  ON  THE 

• 

of  British  trial,  nor  indeed  in  the  whole  history  of 
human  justice  or  injustice. 

Gentlemen,  the  first  thing  in  order,  is  to  look  at 
the  indictment  itself;  of  the  whole  of  which,  or  of 
some  integral  part,  the  prisoner  must  be  found 
guilty,  or  be  wholly  discharged  from  guilt. 

The  indictment  charges  that  the  prisoners  did 
maliciously  and  traitorously  conspire,  compass, 
and  imagine,  to  bring  and  put  our  lord  the  King 
to  death;  and  that  to  fulfill,  perfect,  and  bring  to 
effect,  their  most  evil  and  wicked  purpose,  that  is 
to  say,  of  bringing  and  putting  the  King  to  death, 
"they  met,  conspired,  consulted,  and  agreed 
amongst  themselves,  and  other  false  traitors  un- 
known, to  cause  and  procure  a  convention  to  be 
assembled  within  the  kingdom,  with  intent  (I  am 
reading  the  very  words  of  the  indictment,  which  I 
entreat  you  to  follow  in  the  notes  you  have  been 
taking  with  such  honest  perseverance),  with  intent, 
and  in  order  that  the  persons  so  assembled  at  such 
convention,  should  and  might  traitorously,  and  in 
defiance  of  the  authority,  and  against  the  will  of 
Parliament,  subvert  and  alter,  and  cause  to  be 
subverted  and  altered,  the  legislature,  rule  and 
government  of  the  country;  and  to  depose  the 
King  from  the  royal  state,  title,  power,  and  govern- 
ment thereof."  This  is  the  first  and  great  leading 
overt  act  in  the  indictment ;  and  you  observe  that 
it  is  not  charged  as  being  treason  substantially  and 


TRIAL  OF   THOMAS   HARDY.  407 

in  itself,  but  only  as  it  is  committed  in  pursuance* 
of  the  treason  against  the  King's  person,  antece- 
dently imputed;  for  the  charge  is  not,  that  the 
prisoners  conspired  to  assemble  a  convention  to 
depose  the  King,  but  that  they  conspired  and  com- 
passed  his  death  ;  and  that,  in  order  to  accomplish 
that  wicked  and  detestable  purj>ose,  t.  e.,  in  order 
to  fulfill  the  traitorous  intention  of  the  mind  against 
his  life,  they  conspired  to  assemble  a  convention, 
with  a  view  to  depose  him.  The  same  observation 
applies  alike  to  all  the  other  counts  or  overt  acts 
upon  the  record,  which  manifestly  indeed  lean  up- 
on the  establishment  of  the  first  for  their  support ; 
because  they  charge  the  publication  of  different 
writings,  and  the  provision  of  arms,  not  as  distinct 
offences,  but  as  acts  done  to  excite  to  the  assem- 
bling of  the  same  convention,  and  to  maintain  it 
when  assembled ;  but  above  all,  and  which  must 
never  be  forgotten,  because  they  also  uniformly 
charge  these  different  acts  as  committed  in  fulfill- 
ment of  the  same  traitorous  purpose,  to  bring  the 
King  to  death.  You  will,  therefore,  have  three 
distinct  matters  for  consideration,  u|x>n  this  trial : 
First,  What  share,  if  any,  the  prisoner  had,  in  con- 
ceit with  others,  in  assembling  any  convention 
or  meeting  of  subjects  within  this  kingdom:  SSec- 
ondly,  What  were  the  acts  to  be  done  by  this 
convention,  when  assembled:  and  Thirdly,  What 
was  the  view,  purpose,  and  intention  of  those  who 


408  SPEECH   OF   ME.    ERSKINE   ON   THE 

projected  its  existence.  This  third  consideration, 
indeed,  comprehends,  or  rather  precedes  and  swal- 
lows up  the  other  two;  because,  before  it  can  be 
material  to  decide  upon  the  views  of  the  conven- 
tion, as  pointed  to  the  subversion  of  the  rule  and 
order  of  the  King's  political  authority,  even  if  such 
views  could  be  ascribed  to  it,  and  brought  home 
even  personally  to  the  prisoner,  we  shall  have  to 
examine  whether  that  criminal  conspiracy  against 
the  established  order  of  the  community  was  hatch- 
ed and  engendered  by  a  wicked  contemplation  to 
destroy  the  natural  life  and  person  of  the  King; 
and  whether  the  acts  charged  and  established  by 
the  evidence,  were  done  in  pursuance  and  in  fulfill- 
ment of  the  same  traitorous  purpose. 

Gentlemen,  this  view  of  the  subject  is  not  only 
correct,  but  self-evident;  the  subversion  of  the 
king's  political  government,  and  all  conspiracies  to 
subvert  it,  are  crimes  of  great  magnitude  and 
enormity,  which  the  law  is  open  to  punish;  but 
neither  of  them  are  the  crimes  before  you.  The 
prisoner  is  not  charged  with  a  conspiracy  against 
the  King's  political  government,  but  against  his 
natural  life.  He  is  not  accused  of  having  merelv 
taken  steps  to  depose  him  from  his  authority,  but 
with  having  done  so  with  the  intention  to  bring 
him  to  death.  It  is  the  act  with  the "  specific 
intention,  and  not  the  act  alone,  which  consti- 
tutes the  charge.  The  act  of  conspiring  to 


TRIAL   OF  THOMAS   HARDY.  409 

depose  the  King,  may  indeed  be  evidence, 
according  to  circumstances,  of  an  intention  to 
destroy  his  natural  existence;  but  never  as  ft 
proposition  of  law,  an  constitute  the  intention 
itself.  Where  an  act  is  done  in  pursuance  of  an 
intention,  surely  the  intention  must  first  exist;  a 
man  cannot  do  a  thing  in  fulfillment  of  an  intention, 
unless  his  mind  first  conceives  that  intention.  The 
doing  an  act,  or  the  pursuit  of  a  system  of  conduct 
which  leads  in  probable  consequences  to  the  death 
of  the  King,  may  legally,  if  any  such  be  before 
you,  affect  the  consideration  of  the  traitorous  pur- 
pose charged  by  the  record,  and  I  am  not  afraid 
of  trusting  you  with  the  evidence.  How  far  any 
given  act,  or  course  of  acting,  independently  of 
intention,  may  lead  probably  or  inevitably  to  any 
natural  or  political  consequence,  is  what  we  have 
no  concern  with;  these  may  be  curious  questions 
of  casuistry  or  politics ;  but  it  is  wickedness  and 
folly  to  declare  that  consequences  unconnected  even 
with  intention  or  consciousness,  shall  be  synony- 
mous in  law  with  the  traitorous  mind;  although 
the  traitorous  mind  alone  is  arraigned,  as  consti- 
tuting the  crime. 

Gentlemen,  the  first  question  consequently  for 
consideration,  and  to  which  I  must  therefore  ear- 
nestly implore  the  attention  of  the  court,  is  this: 
What  is  the  law  upon  this  momentous  subject? 
And  recollecting  that  I  am  invested  with  no  au- 


410     SPEECH  OF  MR.  ERSKINE  ON  THE 

thority,  I  shall  not  presume  to  offer  you  anything 
of  my  own  ;  nothing  shall  proceed  from  myself 
upon  this  part  of  the  inquiry,  but  that  which  is 
merely  introductory,  and  necessary  to  the  under- 
standing of  the  authorities  on  which  I  mean  to 
rely  for  the  establishment  of  doctrines,  not  less 
essential  to  the  general  liberties  of  England,  than 
to  the  particular  consideration  which  constitutes 
our  present  duty. 

First,  then,  I  maintain  that  that  branch  of  the 
statute  25th  of  Edward  the  Third,  which  declares 
it  to  be  high  treason,  "when  a  man  doth  compass 
or  imagine  the  death  of  the  King,  of  his  lady  the 
Queen,  or  of  his  eldest  son  and  heir,"  was  intended 
to  guard  by  a  higher  sanction  than  felony,  the 
natural  lives  of  the  King,  Queen,  and  Prince ;  and 
that  no  act,  therefore,  either  inchoate  or  consum- 
mate, of  resistance  to,  or  rebellion  against,  the 
King's  regal  capacity,  amounts  to  high  treason  of 
compassing  his  death,  unless  where  they  can  be 
charged  upon  the  indictment,  and  proved  to  the 
satisfaction  of  the  jury  at  the  trial,  as  overt  acts, 
committed  by  the  prisoner,  in  fulfillment  of  a 
traitorous  intention  to  destroy  the  King's  natural 
life. 

Secondly,  that  the  compassing  the  King's  death, 
or  in  other  words,  the  traitorous  intention  to  de- 
stroy his  natural  existence,  is  the  treason,  and  not 
the  overt  acts,  which  are  only  laid  as  manifesta- 


TRIAL   OF   THOMAS   HARDY.  411 

tions  of  the  traitorous  intention,  or,  in  other  words, 
as  evidence  comment  to  be  left  to  a  jury  to  prove 
it ;  and  that  no  conspiracy  to  levy  war  against  the 
King,  nor  any  conspiracy  against  his  regal  charac- 
ter or  cajuicity,  is  a  good  overt  act  of  comparing 
his  death,  unless  some  force  be  exerted,  or  in  con- 
templation, against  the  King's  JKTSOU  ;  and  that 
such  force,  so  exerted  or  in  contemplation,  is  not 
substantively  the  treason  of  compassing,  but  only 
competent,  in  point  of  law,  to  establish  it  if  the 
jury,  by  the  verdict  of  guilty,  draw  that  conclu- 
sion of  fact  from  the  evidence  of  the  overt  act. 

Thirdly,  that  the  charge  in  the  indictment,  of 
compassing  the  King's  death,  is  not  laid  as  legal 
inducement  or  introduction,  to  follow  as  a  legal 
inference  from  the  establishment  of  the  overt  act, 
but  is  laid  as  an  averment  of  a  fact ;  and,  as  such, 
the  very  gist  of  the  indictment,  to  be  affirmed 
or  negatived  by  the  verdict  of  guilty  or  not  guilty. 
It  will  not,  I  am  persuaded,  be  sus]>ected  by  the 
Attorney-General,  or  by  the  court,  that  I  am  about 
to  support  these  doctrines  by  opposing  my  own 
judgment  to  the  authoritative  writings  of  the  ven- 
erable and  excellent  Lord  Hale,  whose  memory 
will  live  in  this  country,  and  throughout  the 
enlightened  world,  as  long  as  the  administration 
of  pure  justice  shall  exist ;  neither  do  I  wish  to 
oppose  anything  which  is  to  be  found  in  the  other 
learned  authorities  principally  relied  on  by  the 


412  SPEECH   OF   ME.    ERSKINE   ON   THE 

Crown,  because  all  my  positions  are  perfectly  con- 
sistent with  a  right  interpretation  of  them ;  and 
because,  even  were  it  otherwise,  I  could  not  expect 
successfully  to  oppose  them  by  any  reasonings  of 
my  own,  which  can  have  no  weight,  but  as  they 
shall  be  found  at  once  consistent  with  acknowl- 
edged authorities,  and  with  the  established  prin- 
ciples of  English  law.  I  can  do  this  with  the 
greater  security,  because  my  respectable  and 
learned  friend,  the  Attorney-General,  has  not  cited 
cases  which  have  been  the  disgrace  of  this  country 
in  former  times,  nor  asked  you  to  sanction  by  your 
judgment  those  bloody  murders,  which  are  re- 
corded by  them  as  acts  of  English  justice ;  but,  as 
might  be  expected  of  an  honorable  man,  his  expo- 
sitions of  the  law,  though  I  think  them  frequently 
erroneous,  are  drawn  from  the  same  sources  which 
I  look  up  to  for  doctrines  so  very  different.  I  find, 
indeed,  throughout  the  whole  range  of  authorities, 
I  mean  those  which  the  Attorney-General  has  prop- 
erly considered  as  deserving  that  name  and  char- 
acter, very  little  contradiction ;  for,  as  far  as  I  can 
discover,  much  more  entanglement  has  arisen  from 
now  and  then  a  tripping  in  the  expression,  than 
from  any  difference  of  sentiment  amongst  eminent 
and  virtuous  judges,  who  have  either  examined,  or 
sat  in  judgment  upon  this  momentous  subject. 

Gentlemen,   before  I  pursue  the  course  I  have 
prescribed  to  myself,  I  desire  most   distinctly  to  be 


TRIAL   OF  THOMAS   HARDY.  413 

understood,  that  in  my  own  judgment,  the  most 
successful  argument  that  a  conspiracy  to  depose 
the  King  does  not  necessarily  establish  the  treason 
charged  upon  this  record,  is  totally  beside  anv 
possible  judgment  that  you  can  have  to  form 
upon  the  evidence  before  you ;  since  throughout 
the  whole  volumes  that  have  been  read,  I  can  trace 
nothing  that  even  points  to  the  imagination  of 
such  a  conspiracy;  and,  consequently,  the  doctrines 
of  Coke,  Hale,  and  Forster,  on  the  subject  of  high 
treason,  might  equally  be  detailed  in  any  other 
trial  that  has  ever  been  proceeded  upon  in  this 
place.  But,  gentlemen,  I  stand  in  a  fearful  and 
delicate  situation.  As  a  supposed  attack  upon  the 
King's  civil  authority  has  been  transmuted,  by  con- 
struction, into  a  murderous  conspiracy  against  his 
natural  person,  in  the  same  manner,  and  by  the 
same  arguments,  a  conspiracy  to  overturn  that  civil 
authority,  by  direct  force,  has  again  been  assimi- 
lated, by  further  construction,  to  a  design  to 
undermine  monarchy  by  changes  wrought  through 
public  opinion,  enlarging  gradually  into  universal 
will ;  so  that  I  can  admit  no  false  pro{>osition, 
however  wide  I  may  think  it  of  rational  applica- 
tion. For  as  there  is  a  constructive  compassing, 
so  also  there  is  a  constructive  dejKwing;  and  I 
cannot,  therefore,  possibly  know  what  either  of 
them  is  separately,  nor  how  the  one  may  be  argued 
to  involve  the  other.  There  are,  besides,  many 


414  SPEECH    OF   MR.    EESKINE   OX   THE 

prisoners  whose  cases  are  behind,  and  whose  lives 
may  be  involved  in  your  present  deliberation ; 
their  names  have  been  already  stigmatized,  and 
their  conduct  arraigned  in  the  evidence  you  have 
heard,  as  a  part  of  the  conspiracy.  It  is  these 
considerations  which  drive  me  into  so  large  a  field 
of  argument,  because,  by  sufficiently  ascertaining 
the  law  in  the  outset,  they  who  are  yet  looking  up 
to  it  for  protection,  may  not  be  brought  into  peril. 

Gentlemen,  I  now  proceed  to  establish,  that  a 
compassing  of  the  death  of  the  King,  within  the 
twenty-fifth  of  Edward  the  Third,  which  is  the 
charge  against  the  prisoner,  consists  in  a  traitorous 
intention  against  his  natural  life;  and  that  nothing 
short  of  your  firm  belief  of  that  detestable  inten- 
tion, from  overt  acts  which  you  find  him  to  have 
committed,  can  justify  his  conviction.  That  I 
may  keep  my  word  with  you  in  building  my  argu- 
ment upon  nothing  of  my  own,  I  hope  my  friend, 
Mr.  Gibbs,  will  have  the  goodness  to  call  me  back, 
if  he  finds  me  wandering  from  my  engagement; 
that  I  may  proceed,  step  by  step,  upon  the  most 
venerable  and  acknowledged  authorities  of  the  law. 

In  this  process  I  shall  begin  with  Lord  Hale, 
who  opens  this  important  subject  by  stating  the 
reason  of  passing  the  statute  of  the  twenty-fifth  of 
Edward  the  Third,  on  which  the  indictment  is 
founded.  Lord  Hale  says  in  his  pleas  of  the 
Crown,  vol.  i.,  page  82,  that  "  at  common  law  there 


TRIAL   OF   THOMAS   HARDY.  415 

was  a  great  latitude  used  in  raising  offences  to  the 
crime  and  punishment  of  treason,  hy  way  of  inter- 
pretation and  arbitrary  construction,  which  brought 
in  great  uncertainty  and  confusion.  Thus  accroach- 
ing, i.  e.j  encroaching,  on  royal  power  wan  an  usual 
charge  of  treason  anciently,  though  a  very  uncer- 
tain charge;  BO  that  no  man  could  tell  what  it 
was,  or  what  defence  to  make  to  it."  Lord  Hale 
then  goes  on  to  state  various  instances  of  vexation 
and  cruelty,  and  concludes  with  this  striking 
observation :  "  By  these  and  the  like  instances 
that  might  be  given,  it  appears  how  arbitrary  and 
uncertain  the  law  of  treason  was  before  the  statute 
of  the  twenty-fifth  of  Edward  the  Third,  whereby 
it  came  to  pass  that  almost  every  offence  that  was, 
or  seemed  to  be,  a  breach  of  the  faith  and  alle- 
giance due  to  the  King,  was,  by  construction,  conse- 
quence, and  interpretation,  raised  into  the  offence 
of  high  treason."  This  is  the  lamentation  of  the 
great  Hale  upon  the  state  of  this  country  previous 
to  the  passing  of  the  statute,  which,  he  says  was 
passed  as  a  remedial  law,  to  put  an  end  to  them  ; 
and  Lord  Coke,  considering  it  in  the  same  light, 
says,  in  his  Third  Institute,  page  2nd,  "The  Parlia- 
ment which  passed  this  statute  was  called,  as  it 
well  deserved  Parliamentum  Benedict  it  m;  and  the 
like  honor  was  given  to  it  by  the  different  statutes 
which  from  time  to  time  brought  back  treasons  to 
its  standards,  all  agreeing  in  magnifying  and 


416     SPEECH  OF  MR.  ERSKINE  ON  THE 

extolling  this  blessed  act."  Now  this  statute, 
which  has  obtained  the  panegyric  of  these  great 
men,  whom  the  chief  justice  in  his  charge  looked 
up  to  for  light  and  for  example,  and  whom  the 
Attorney-General  takes  also  for  his  guide,  would 
very  little  have  deserved  the  high  eulogium  be- 
stowed upon  it,  if,  though  avowedly  passed  to  de- 
stroy uncertainty  in  criminal  justice,  and  to  beat 
down  the  arbitrary  constructions  of  judges, 
lamented  by  Hale,  as  disfiguring  and  dishonor- 
ing the  law,  it  had,  nevertheless,  been  so  worded 
as  to  give  birth  to  new  constructions  and  uncertain- 
ties, instead  of  destroying  the  old  ones.  It  would 
but  ill  have  entitled  itself  to  the  denomination  of 
a  blessed  statute,  if  it  had  not  in  its  enacting  letter 
which  professed  to  remove  doubts,  and  to  ascertain 
the  law,  made  use  of  expressions  the  best  known 
and  understood ;  and  it  will  be  found  accordingly 
that  it  cautiously  did  so.  It  will  be  found  that  in 
selecting  the  expressions  of  compassing  the  death, 
it  employed  a  term  of  the  most  fixed  and  appro- 
priate signification  in  the  language  of  English  law, 
which  not  only  no  judge  or  counsel,  but  which  no 
attorney  or  attorney's  clerk,  could  misunderstand  ; 
because,  in  former  ages,  before  the  statute,  com- 
passing the  death  of  any  man  had  been  a  felony, 
and  what  had  amounted  to  such  compassing,  had 
been  settled  in  a  thousand  instances.  To  establish 
this,  and  to  show,  also,  by  no  reasoning  of  mine, 


TRIAL  OF  THOMAS    HARDY.  417 

that  the  terra  "  compassing  the  death "   was  in- 
tended by  the  statute,  when  appplied  to  the  King, 
as   high  treason,  to  have  the  name  signification  as 
it   had   obtained    in  the  law  when  applied  to  the 
subject  as  a  felony,  I  shall  refer  to   Mr.  Justice 
Forster,  and  even  to  a  passage  cited  by  the  Attor- 
ney-General himself,  which  speaks  so  unequivocally 
and  unanswerably  for  itself,  as  to  mock  all  com- 
mentary :     "  The   ancient   writers,"   says   Forster, 
"in   treating   of    felonious    homicide,    considered 
the   felonious  intention  manifested  by  plain  facts, 
in  the  same  light,  in  point  of  guilt,   as  homicide 
itself.    The  rule  was,  voluntas  reputatur  pro  facto  ; 
and   while  this  rule  prevailed,  the  nature  of  the 
offence  was  expressed  by  the  term  compassing  the 
death.     This  rule  has  long  been  laid  aside  as  too 
rigorous  in  the  case  of  common  persons;  but  in 
the  case  of  the  King,  Queen,  and  Prince,  the  statute 
of  treasons  has,  and  with  great  propriety,  retained 
it  in  its  full  extent  and  vigor ;  and  in  describing 
the  offence  has  likewise  retained  the  ancient  mode 
of  expression,    when    a    man    doth   compass    or 
imagine  the  death  of  our  lord  the  King,  etc.,  and 
thereof    be   upon   sufficient   proof,  provablement, 
attainted  of  open  deed  by  people  of  his  condition ; 
the  words  of  the  statute  descriptive  of  the  offence, 
must,  therefore,  be  strictly  pursued  in  every  indict- 
ment for  this  species  of  treason.     It  must  charge 
that  the  defendant  did   traitorously   compass  and 
27  B 


418     SPEECH  OF  ME.  EESKINE  ON  THE 

imagine  the  King's  death,  and  then  go  and  charge 
the  several  acts  made  use  of  by  the  prisoner  to 
effectuate  his  traitorous  purpose ;  for  the  compass- 
ing the  King's  death  is  the  treason  and  the  overt 
acts  are  charged  as  the  means  made  use  of  to 
effectuate  the  intentions  and  imaginations  of  the 
heart ;  and,  therefore  in  the  case  of  the  regicides, 
the  indictment  charged  that  they  did  traitorously 
compass  and  imagine  the  death  of  the  King,  and 
the  cutting  off  the  head  was  laid  as  the  overt  act, 
and  the  person  who  was  supposed  to  have  given 
the  mortal  stroke  was  convicted  on  the  same 
indictment." 

This  concluding  instance,  though  at  first  view  it 
may  appear  ridiculous,  is  well  selected  as  an  illus- 
tration ;  because,  though  in  that  case  there  could 
be  no  possible  doubt  of  the  intention,  since  the  act 
of  a  deliberate  execution  involves,  in  common 
sense,  the  intention  to  destroy  life,  yet  still  the 
anomaly  of  the  offence,  which  exists  wholly  in  the 
intention,  and  not  in  the  overt  act,  required  the 
preservation  of  the  form  of  the  indictment.  It  is 
surely  impossible  to  read  this  commentary  of  Fors- 
ter,  without  seeing  the  true  purpose  of  the  statute : 
The  common  law  had  anciently  considered,  even 
in  the  case  of  a  fellow  subject,  the  malignant  inten- 
tion to  destroy,  as  equivalent  to  the  act  itself;  but 
that  noble  spirit  of  humanity  which  pervades  the 
whole  system  of  our  jurisprudence,  had,  before  the 


TRIAL  OF  THOMAS  HARDY. 

time  of  King  Edward  the  Third,  eaten  out  and  de- 
stroyed this  rule,  too  rigorous  in  its  general  applica- 
tion ;  but,  as  Forster  truly  observes  in  the  passage 
I  have  read  :  "  This  rule,  too  rigorous  in  the  case 
of  the  subject,  the  statute  of  treasons  retained  in 
the  case  of  the  King,  and  retained  also  the  very 
expressions  used  by  the  law  when  compassing  the 
death  of  a  subject  was  felony. 

The  statute,  therefore,  being  expressly  made  to 
remove  doubts,  and  accurately  to  define  treason, 
adopted  the  ancient  expression  of  the  common  law, 
as  applicable  to  felonious  homicide,  meaning  that 
the  life  of  the  sovereign  should  remain  an  excej)- 
tion,  and  that  vofontas  pro  facto,  the  wicked  inten- 
tion for  the  deed  itself,  as  it  regarded  his  sacred 
life,  should  continue  for  the  rule ;  and,  therefore, 
says  Forster,  the  statute  meaning  to  retain  the  law 
which  was  before  general,  retained  also  the  expres- 
sion. It  appears  to  me,  therefore,  incontrovertible, 
not  onlv  bv  the  words  of  the  statute  itself,  but 

V  * 

upon  the  authority  of  Forster,  which  I  shall  follow 
up  by  that  of  Lord  Coke  and  Hale,  contradicted 
by  no  syllable  in  their  works,  as  I  shall  demon- 
strate, that  the  statute,  as  it  regarded  the  security 
of  the  King's  life,  did  not  mean  to  enact  a  new 
security  never  known  to  the  common  law  in  other 
owes,  but  meant  to  suffer  a  common  law  rule  which 
formerly  existed  universally,  which  was  precisely 
known,  but  which  was  too  severe  in  common  cases, 


420     SPEECH  OF  MR.  ERSKINE  ON  THE 

to  remain  as  an  exception  in  favor  of  the  King's 
security.  I  do,  therefore,  positively  maintain,  not 
as  an  advocate  merely,  but  in  my  own  person,  that, 
within  the  letter  and  meaning  of  the  statute,  noth- 
ing can  be  a  compassing  the  death  of  the  King 
that  would  not,  in  ancient  times,  have  been  a 
felony  in  the  case  of  a  subject;  for  otherwise 
Forster  and  Coke,  as  will  be  seen,  are  very  incor- 
rect when  they  say  the  statute  retained  the  old  law, 
and  the  appropriate  word  to  express  it ;  for  if  it 
went  beyond  it,  it  would,  on  the  contrary,  have 
been  a  new  rule,  unknown  to  the  common  law, 
enacted  for  the  first  time,  for  the  preservation  of 
the  King's  life.  Unquestionably  the  legislature 
might  have  made  such  a  rule ;  but  we  are  not 
inquiring  what  it  might  have  enacted,  but  what  it 
has  enacted.  But  I  ought  to  ask  pardon  for  hav- 
ing relapsed  into  any  argument  of  my  own  upon 
this  subject,  when  the  authorities  are  more  express 
to  the  purpose  than  any  language  I  can  use.  For 
Mr.  Justice  Forster  himself  expressly  says,  Dis- 
course First,  of  High  Treason,  p.  207  :  "  All  the 
words  descriptive  of  the  offence,  viz.,  '  If  a  man 
doth  compass  or  imagine,  and  therefore  be  attainted 
of  open  deed,'  are  plainly  borrowed  from  the  com- 
mon law,  and  therefore  must  bear  the  same  con- 
struction they  did  at  common  law."  Is  this  dis- 
tinct ?  I  will  read  it  to  you  again :  "  All  the 
words  descriptive  of  the  offence,  viz.,  'If  a  man 


TRIAL  OF  THOMAS   HARDY. 

doth  compass  or  imagine,  and  therefore  be  attainted 
of  open  deed,'  are  plainly  borrowed  from  the  com- 
mon law,  and  therefore  must  bear  the  same  construc- 
tion they  did  at  common  law." 

Gentlemen,  Mr.  Justice  Forster  is  by  no  means 
singular  in  his  doctrine.  Lord  Coke,  the  oracle  of 
the  law,  and  the  best  oracle  that  one  can  consult, 
when  standing  for  a  prisoner  charged  with  treason, 
as  he  was  the  highest  prerogative  lawyer  that  ever 
existed,  maintains  the  same  doctrine ;  even  he,  even 
Coke,  the  infamous  prosecutor  of  Kuleigh,  whose 
character  with  posterity,  as  an  Attorney -General, 
my  worthy  and  honorable  friend  would  disdain  to 
hold,  to  be  the  author  of  all  his  valuable  works ; 
yet  even  this  very  Lord  Coke  himself,  holds  pre- 
cisely the  same  language  with  Forster.  For,  in 
his  Commentary  on  this  statute,  in  his  third  Insti- 
tute, p.  5,  when  he  comes  to  the  word,  "  doth 
compass,"  he  says,  "Let  us  see  first  what  the  com- 
passing the  death  of  a  subject  was  before  the 
making  of  this  statute,  when  voluntas  reputabntur 
pro  facto."  Now,  what  is  the  plain  English  of 
this?  The  commentator  says,  I  am  going  to 
instruct  you,  the  student,  who  are  to  learn  from 
me  the  law  of  England,  what  is  a  compassing  of 
the  death  of  the  King;  but  that  I  cannot  do,  but 
by  first  carrying  you  to  look  into  what  was  the 
compassing  of  the  death  of  a  subject  at  the  ancient 
common  law ;  because  the  statute  having  made  a 


422  SPEECH    OF   ME.    EKSKINE   ON   THE 

compassing,  as  applied  to  the  king,  the  crime  of 
high  treason,  which,  at  common  law,  was  felony  in 
the  case  of  a  subject,  it  is  impossible  to  define  the 
one  without  looking  back  to  the  records  which 
illustrate  the  other.  This  is  so  directly  the  train 
of  Lord  Coke's  reasoning,  that  in  his  own  singularly 
precise  style  of  commentating,  he  immediately  lays 
before  his  reader  a  variety  of  instances  from  the 
ancient  records  and  year-books,  of  compassing  the 
subject's  death;  and  what  are  they?  Not  acts 
wholly  collateral  to  attacks  upon  life,  dogmatically 
laid  down  by  the  law  from  speculations  upon  prob- 
able or  possible  consequences,  but  assaults  with 
intent  to  murder,  conspiracies  to  waylay  the  per- 
son with  the  same  intention,  and  other  murderous 
machinations.  These  were  only  compassings  before 
the  statute  against  the  subject's  life,  and  the  exten- 
sion of  the  expression  was  never  heard  of  in  the 
law  till  introduced  by  the  craft  of  political  judges, 
when  it  became  applicable  to  crimes  against  the 
State.  Here  again  I  desire  to  appeal  to  the  high- 
est authorities  for  this  source  of  constructive 
treasons ;  for  although  the  statute  of  Edward  the 
Third  had  expressly  directed  that  nothing  should 
be  declared  to  be  treason  but  cases  within  its 
enacting  letter,  yet  Lord  Hale  says,  in  his  pleas  of 
the  Crown,  page  83,  that  "things  were  so  carried 
by  parties  and  factions,  in  the  succeeding  reign  of 
Richard  the  Second,  that  this  statute  was  but  little 


TRIAL  OF  THOMAS  HARDY.        423 

observed,  but  as  this  or  that  party  got  the  bettor. 
So  the  crime  of  high  treason  was  in  a  manner  arbi- 
trarily imposed  and  adjudged,  to  the  disadvantage 
of  the  party  that  was  to  be  judged,  which,  by 
various  vicissitudes  and  revolution*,  mischiefed  all 
parties,  first  and  hist,  and  left  a  great  unsettledness 
and  unquietness  in  the  minds  of  the  people,  and 
was  one  of  the  occasions  of  the  unhappiuess  of  that 
King. 

"All  this  mischief  was  produced  by  the  statute 
of  the  21st  of  Richard  the  Second,  which  enacted, 
That  every  man  that  compasseth  or  pursueth  the 
death  of  the  King,  or  to  depose  him,  or  to  render 
up  his  homage  liege,  or  he  that  raiseth  people  and 
rideth  against  the  King,  to  make  war  within  his 
realm,  and  of  that  be  duly  attainted  and  adjudged, 
shall  be  adjudged  a  traitor,  of  high  treason  against 
the  Crown. 

"  This,"  says  Lord  Hale,  "  was  a  great  snare  to 
the  subject,  insomuch  that  the  statute,  first  of 
Henry  Fourth,  which  repealed  it,  recited  that  no 
man  knew  how  he  ought  to  behave  himself,  to  do, 
speak,  or  say,  for  doubt  of  such  pains  of  treason  ; 
and  therefore,  wholly  to  remove  the  prejudice, 
which  might  come  to  the  King's  subjects,  the  stat- 
ute, first  of  Henry  Fourth,  chap.  10,  was  nuidr. 
which  brought  back  treason  to  the  standard  of  the 
twenty-fifth  of  Edward  the  Third." 

Now  if  we  look  to  this  statute  of  Richard  thr 


424  SPEECH   OF    MR.    ERSKINE   ON    THE 

Second,  which  produced  such  mischiefs — what  are 
they  ?  As  far  as  it  re-enacted  the  treason  of  com- 
passing the  King's  death,  and  levying  war,  it  only 
re-enacted  the  statute  of  Edward  the  Third,  but  it 
went  beyond  it  by  the  loose  construction  of  com- 
passing to  depose  the  King,  and  raising  the  people, 
and  riding  to  make  war,  or  a  compassing  to  depose 
him,  terms  new  to  the  common  law.  The  actual 
levying  of  force,  to  imprison,  or  depose  the  King, 
was  already  and  properly  high  treason,  within  the 
second  branch  of  the  statute ;  but  this  statute  of 
Richard  the  Second  enlarged  only  the  crime  of 
compassing,  making  it  extend  to  a  compassing  to 
imprison  or  depose,  which  are  the  great  objects  of 
an  actual  levying  of  war,  and  making  a  compassing 
to  levy  war,  on  a  footing  with  the  actual  levying  it. 
It  seems,  therefore,  most  astonishing,  that  any  judge 
could  be  supposed  to  have  decided,  as  an  abstract 
rule  of  law,  that  a  compassing  to  imprison  or  de- 
pose the  King  was  high  treason,  substantively,  with- 
out previous  compassing  of  his  death ;  since  it  was 
made  so  by  this  statute,  twenty-first  of  Richard  the 
Second,  and  reprobated,  stigmatized,  and  repealed 
by  the  statute,  first  of  Henry  the  Fourth,  chap. 
10.  "And  so  little  effect,"  says  Mr.  Justice 
Blackstone,  "  have  over-violent  laws  to  prevent 
any  crime,  that  within  two  years  after  this  new 
law  of  treason  respecting  imprisonment  and  depos- 


TRIAL  OF  THOMAS   HARDY.  425 

ing,   this    very    prince    was    both   deposed    and 
murdered." 

Gentlemen,  this  distinction,  made  by  the  humane 
statute  of  Edward  the  Third,  between  treason 
against  the  King's  natural  life,  and  rebellion  against 
his  civil  authority,  and  which  the  act  of  Richard 
the  Second,  for  a  season,  broke  down,  is  founded 
in  wise  and  sound  policy.  A  successful  attack  may 
be  made  upon  the  King's  person  by  the  malignity 
of  an  individual,  without  the  combination  of  ex- 
tended conspiracy,  or  the  exertions  of  rebellious 
force;  the  law  therefore  justly  stands  upon  the 
watch  to  crush  the  first  overt  manifestation  of  so 
evil  and  detestable  a  purpose.  Considering  the 
life  of  the  chief  magistrate  as  infinitely  important 
to  the  public  security,  it  does  not  wait  for  the 
possible  consummation  of  a  crime,  which  requires 
neither  time,  combination,  nor  force  to  accomplish, 
but  considers  the  traitorous  purpose  as  a  consummat- 
ed treason ;  but  the  wise  and  humane  policy  of  our 
forefathers  extended  the  severity  of  the  rule,  volun- 
tas  pro  facto,  no  further  than  they  were  thus 
impelled  and  justified  by  the  necessity;  and  there- 
fore an  intention  to  levy  war  and  rebellion,  not 
consummated,  however  manifested  by  the  most 
overt  acts  of  conspiracy,  was  not  declared  to  be 
treason,  and  upon  the  plainest  principle  in  the 
world.  The  King's  regal  capacity,  guarded  by  all 
the  force  and  authority  of  the  state,  could  not,  like 


426      SPEECH  OF  ME.  ERSKINE  ON  THE 

his  natural  existence,  be  overthrown  or  endangered 
in  a  moment,  by  the  first  machinations  of  the 
traitorous  mind  of  an  individual,  or  even  by  the 
unarmed  conspiracy  of  numbers ;  and  therefore 
this  humane  and  exalted  institution,  measuring  the 
sanctions  of  criminal  justice  by  the  standard  of 
civil  necessity,  thought  it  sufficient  to  scourge  and 
dissipate  unarmed  conspirators  by  a  less  vindictive 
proceeding. 

These  new  treasons  were,  however,  at  length  all 
happily  swept  away  on  the  accession  of  King 
Henry  the  Fourth,  which  brought  the  law  back  to 
the  standard  of  Edward  the  Third ;  and,  indeed, 
in  reviewing  the  history  of  this  highly-favored 
island,  it  is  most  beautiful,  and,  at  the  same  time, 
highly  encouraging  to  observe,  by  what  an  extra- 
ordinary concurrence  of  circumstances,  under  the 
superintendence  of  a  benevolent  Providence,  the 
liberties  of  our  country  have  been  established. 
Amidst  the  convulsions,  arising  from  the  maddest 
ambition  and  injustice,  and  whilst  the  state  was 
alternately  departing  from  its  poise,  on  one  side, 
and,  on  the  other,  the  great  rights  of  mankind 
were  still  insensibly  taking  root  and  flourishing ; 
though  sometimes  monarchy  threatened  to  lay 
them  prostrate,  though  aristocracy  occasionally 
undermined  them,  and  democracy,  in  her  turn, 
rashly  trampled  on  them,  yet  they  have  ever  come 
safely  round  at  last.  This  awful  and  sublime  con- 


TRIAL  OF  THOMAS   HARDY.  427 

templation  should  teach  us  to  bear  with  one 
another  when  our  opinions  do  not  quite  coincide ; 
extracting  final  harmony  from  the  inevitable  dif- 
ferences which  ever  did,  and  ever  must  exist 
amongst  men. 

Gentlemen,  the  act  of  Henry  the  Fourth  was 
scarcely  made  when  it  shared  the  same  fate  with 
the  venerable  law  which  it  restored.  Nobody 
regarded  it  It  was  borne  down  by  factions,  and, 
in  those  days,  there  were  no  judges,  as  there  are 
now,  to  hold  firm  the  balance  of  justice  amidst  the 
storms  of  state ;  men  could  not  then,  as  the  pris- 
oner can  to-day,  look  up  for  protection  to  magis- 
trates independent  of  the  Crown,  and  awfully 
accountable  in  character  to  an  enlightened  world. 
As  fast  as  arbitrary  constructions  were  abolished 
by  one  statute,  unprincipled  judges  began  to  build 
them  up  again,  till  they  were  beat  down  by 
another;  to  recount  their  strange  treasons  would 
be  tiresome  and  disgusting ;  but  their  system  of 
construction,  in  the  teeth  of  positive  law,  may  be 
well  illustrated  by  two  lines  from  Pope : 

"  Destroy  his  fib  and  sophistry  in  rain, 
The  creature's  at  his  dirty  work  again." 

This  system,  both  judicial  and  parliamentary, 
became  indeed  so  intolerable  in  the  interval  be- 
tween the  reign  of  Henry  the  Fourth,  ami  that  of 
Philip  and  Mary,  that  it  produced,  in  the  lir.-t 


428  SPEECH    OF   ME.    EESKINE   ON    THE 

year  of  the  latter  reign,  the  most  remarkable 
statute  that  ever  passed  in  England,  repealing  not 
only  all  former  statutes  upon  the  subject,  except 
that  of  Edward  the  Third,  but  also  stigmatizing, 
upon  the  records  of  Parliament,  the  arbitrary  con- 
structions of  judges,  and  limiting  them,  in  all  times, 
to  every  letter  of  the  statute.  I  will  read  to  you 
Lord  Coke's  commentary  upon  the  subject.  In  his 
third  Institute,  page  23,  he  says:  "Before  the 
act  of  the  twenty-fifth  of  Edward  the  Third,  so 
many  treasons  had  been  made  and  declared,  and 
in  such  sort  penned,  as  not  only  the  ignorant  and 
unlearned  people,  but  also  learned  and  expert  men, 
were  trapped  and  snared,  *  *  so  as  the  mischief 
before  Edward  the  Third,  of  the  uncertainty  of 
what  was  treason  and  what  not,  became  so  frequent 
and  dangerous,  as  that  the  safest  and  surest  remedy 
was  by  this  excellent  act  of  Mary  to  abrogate  and 
repeal  all,  but  only  such  as  are  specified  and 
expressed  in  the  statute  of  Edward  the  Third. 
By  which  law  the  safety  of  both  the  king  and  of 
the  subject,  and  the  preservation  of  the  common 
weal,  were  wisely  and  sufficiently  provided  for, 
and  in  such  certainty,  that  nihil  relictum  est  arbi- 
trio  judicis." 

The  whole  evil,  indeed,  to  be  remedied  and 
avoided  by  the  act  of  Queen  Mary  was,  the  arbi- 
trium  judicis,  or  judicial  construction  beyond  the 
letter  of  the  statute.  The  statute  itself  was  per- 


TRIAL   OF   THOMAS   HARDY.  429 

feet,  and  was  restored  in  its  full  vigor;  and  to  sup- 
pose, therefore,  that  when  an  act  was  expressly 
made,  because  judges  had  built  treasons  by  con- 
structions beyond  the  law,  they  were  to  be  left, 
consistently  with  their  duty,  to  go  on  building 
again,  is  to  impute  a  folly  to  the  legislature,  which 
never  yet  was  imputed  to  the  framers  of  this 
admirable  statute.  But  this  absurd  idea  is  ex- 
pressly  excluded,  not  merely  by  the  statute,  ac- 
cording to  its  plain  interpretation,  but  according 
to  the  direct  authority  of  Lord  G'oke  himself,  in 
his  commentary  upon  it.  For  he  goes  on  to  say : 
"Two  things  are  to  be  observed,  first,  that  the 
word  expressed,  in  the  statute  of  Mary,  excludes 
all  implications  or  inferences  whatsoever ;  secondly, 
that  no  former  attainder,  judgment,  precedent, 
resolution,  or  opinion  of  judges,  or  justices,  of  high 
treason,  other  than  such  as  are  sj>ecified  and  ex- 
pressed in  the  statute  of  Edward  the  Third,  are 
to  be  followed  or  drawn  into  example.  For  the 
words  be  plain  and  direct ;  that  from  henceforth 
no  act,  deed,  or  offence  shall  be  taken,  had,  deemed, 
or  adjudged  to  be  high  treason,  but  only  such  as 
are  declared  and  expressed  in  the  said  act  of  the 
twenty-fifth  of  Edward  the  Third,  any  act  of  Par- 
liament, or  statute  after  twenty-fifth  of  Edward 
the  Third,  or  any  other  declaration  or  matter,  to 
the  contrary  notwithstanding." 

Gentlemen,  if  the  letter  of  the  statute  of  Mary, 


430    '  SPEECH  OF  ME.  EESKINE  ON  THE 

when  coupled  with  Lord  Coke's  commentary,  re- 
quired further  illustration,  it  would  amply  receive 
it  from  the  preamble,  which  ought  to  be  engraved 
on  the  heart  of  every  man  who  loves  the  King,  or 
who  is  called  to  any  share  in  his  councils ;  for,  as 
Lord  Coke  observes  in  the  same  commentary :  It 
truly  recites,  that  "the  state  of  a  king  standeth 
and  consisteth  more  assured  by  the  love  and  favor 
of  the  subjects  toward  their  sovereign,  than  in  the 
dread  and  fear  of  laws,  made  with  rigorous  and 
extreme  punishment;  and  that  laws,  justly  made 
for  the  preservation  of  the  common  weal,  without 
extreme  punishment  or  penalty,  are  more  often  and 
for  the  most  part  better  kept  and  obeyed,  than 
laws  and  statutes  made  with  extreme  punishment." 
But,  gentlemen,  the  most  important  part  of 
Lord  Coke's  commentary  on  this  statute  is  yet 
behind,  which  I  shall  presently  read  to  you,  and  to 
which  I  implore  your  most  earnest  attention ;  be- 
cause I  will  show  you  by  it,  that  the  unfortunate 
man,  whose  innocence  I  am  defending,  is  arraigned 
before  you  of  high  treason,  upon  evidence  not  orily 
wholly  repugnant  to  this  particular  statute,  but 
such  as  never  yet  was  heard  of  in  England  upon 
any  capital  trial;  evidence  which,  even  with  all 
the  attention  you  have  given  to  it,  I  defy  any  one 
of  you,  at  this  moment,  to  say  of  what  it  consists ; 
evidence,  which,  since  it  must  be  called  by  that 
name,  I  tremble  for  my  boldness  in  presuming  to 


TRIAL   OF  THOMAS   HARDY.  431 

stand  up  for  the  life  of  a  man,  when  I  am  con- 
scious that  I  am  incapable  of  understanding  from 
it,  even  what  acts  are  imputed  to  him  ;  evidence, 
which  has  consumed  four  days  in  the  reading;  not 
in  reading  the  acts  of  the  prisoner,  hut  the  uncon- 
nected writings  of  men,  unknown  to  one  another, 
upon  a  hundred  different  subjects ;  evidence,  the 
very  listening  to  which  has  deprived  me  of  the 
sleep  which  nature  requires ;  which  has  filled  my 
mind  with  unremitting  distress  and  agitation,  and 
which,  from  its  discordant,  unconnected  nature, 
has  suffered  me  to  reap  no  advantage  from  the 
indulgence,  which  I  began  with  thanking  you  for; 
but  which,  on  the  contrary,  has  almost  set  my 
brain  on  fire,  with  the  vain  endeavor  of  collecting 
my  thoughts  upon  a  subject  never  designed  for 
any  rational  course  of  thinking. 

Let  us,  therefore,  see  how  the  unexampled  con- 
dition I  am  placed  in,  falls  in  with  Lord  Coke  upon 
this  subject,  whose  authority  is  appealed  to  by  the 
Crown  itself;  and  let  us  go  home  and  burn  our 
books  if  they  aie  to  blazon  forth  the  law  by 
eulogium,  and  accurately  to  define  its  protector, 
which  yet  the  subject  is  to  be  totally  cut  off  from, 
when  even  under  the  sanction  of  these  very 
authors,  he  stands  upon  his  trial  for  his  existence. 
Lord  Coke  says  in  the  same  commentary,  page  12, 
that  the  statute  had  not  only  accurately  defined 
the  charge,  but  the  nature  of  the  proof  on  which 


432  SPEECH    OF    ME.    EESKINE    ON    THE 

alone  a  man  shall  be  attainted  of  any  of  the 
branches  of  high  treason.  "  It  is  to  be  observed," 
says  he,  "that  the  word  in  the  act  of  Edward  the 
Third  is  provablement,  i.  e.,  upon  direct  and 
manifest  proof,  not  upon  conjectural  presumptions, 
or  inferences,  or  strains  of  wit,  but  upon  good  and 
sufficient  proof.  And  herein  the  adverb  provably 
hath  a  great  force,  and  signifieth  a  direct,  plain 
proof,  which  word  the  Lords  and  Commons  in  Par- 
liament did  use,  for  that  the  offence  of  treason  was 
so  heinous,  and  was  so  heavily  and  severely  pun- 
ished, as  none  other  the  like,  and  therefore  the 
offender  must  be  provably  attainted,  which  words 
are  as  forcible  as  upon  direct  and  manifest  proof. 
Note,  the  word  is  not  probably,  for  then  commune 
argumentum  might  have  served,  but  the  word  is 
provably  be  attainted." 

Nothing  can  be  so  curiously  and  tautologously 
labored  as  this  commentary,  of  even  that  great 
prerogative  lawyer,  Lord  Coke,  upon  this  single 
word  in  the  statute;  and  it  manifestly  shows  that, 
so  far  from  its  being  the  spirit  and  principle  of  the 
law  of  England  to  loosen  the  construction  of  this 
statute,  and  to  adopt  rules  of  construction  and 
proof,  unusual  in  trials  for  other  crimes,  on  the 
contrary,  the  legislature  did  not  even  leave  it  to 
the  judges  to  apply  the  ordinary  rules  of  legal 
proof  to  trials  under  it,  but  admonished  them  to  do 


TRIAL  OF   THOMAS   HARDY.  433 

justice  in  that  respect  in  the  very  body  of  the 
statute. 

Lord  Hale  treads  in  the  same  path  with  Lord 
Coke,  and  concludes  this  part  of  the  subject  by  the 
following  most  remarkable  passage,  vol.  i.  chap, 
xi.  86. 

"Now although  the  crime  of  high  treason  is  the 
greatest  crime  against  faith,  duty,  and  humnn 
society,  and  brings  with  it  the  greatest  and  most 
fatal  dangers  to  the  government,  peace,  anfl  happi- 
ness of  a  kingdom  or  state,  and  therefore  is 
deservedly  branded  with  the  highest  ignominy,  and 
subjected  to  the  greatest  penalties  that  the  law  can 
inflict,  it  appears,  first,  how  necessary  it  was  that 
there  should  be  some  known,  fixed,  settled  IKHIU- 
dary  for  this  great  crime  of  treason,  and  of  what 
great  importance  the  statute  of  twenty-fifth  of 
Edward  the  Third  was,  in  order  to  that  end. 
Second,  how  dangerous  it  is  to  depart  from  the 
letter  of  that  statute,  and  to  multiply  and  enhance 
crimes  into  treason  by  ambiguous  and  general 
words,  such  as  accroaching  royal  jx)wer,  subverting 
fundamental  laws,  and  the  like.  And  third,  how 
dangerous  it  is  by  construction  and  analogy,  to 
make  treasons  where  the  letter  of  the  law  has  not 
done  it.  For  such  a  method  admits  of  no  limits 
or  bounds,  but  runs  as  far  and  as  wide  as  the  wit 
and  invention  of  accusers,  and  the  detestation  of 
persons  accused,  will  carry  men." 
28  B 


434  SPEECH   OF   ME.    EKSKESTE   ON   THE 

Surely  the  admonition  of  this  super-eminent 
judge  ought  to  sink  deep  into  the  heart  of  every 
judge,  and  of  every  juryman,  who  is  called  to 
administer  justice  under  this  statute  ;  above  all,  in 
the  times  and  under  the  peculiar  circumstances 
which  assemble  us  in  this  place.  Honorable  men, 
feeling,  as  they  ought,  for  the  safety  of  govern- 
ment, and  the  tranquillity  of  the  country,  and 
naturally  indignant  against  those  who  are  supposed 
to  have  'brought  them  into  peril,  ought  for  that 
very  cause  to  proceed  with  more  abundant  caution, 
lest  they  should  be  surprised  by  their  resentments 
or  their  fears ;  they  ought  to  advance,  in  the  judg- 
ments they  form,  by  slow  and  trembling  steps ; 
they  ought  even  to  fall  back  and  look  at  every- 
thing again,  lest  a  false,  light  should  deceive  them, 
admitting  no  fact  but  upon  the  foundation  of  clear 
and  precise  evidence,  and  deciding  upon  no  inten- 
tion that  does  not  result  with  equal  clearness  from 
the  fact.  This  is  the  universal  demand  of  justice 
in  every  case,  criminal  or  civil;  how  much  more 
then  in  this,  when  the  judgment  is  every  moment 
in  danger  of  being  swept  away  into  the  fathomless 
abyss  of  a  thousand  volumes ;  where  there  is  no 
anchorage  for  the  understanding ;  where  no  reach 
of  thought  can  look  round  in  order  to  compare 
their  points ;  nor  any  memory  be  capacious  enough 
to  retain  even  the  imperfect  relation  that  can  be 
collected  from  them  ? 


TRIAL   OF  THOMAS   HARDY.  435 

Gentlemen,  my  mind  is  the  more  deeply  affected 
with  this  consideration,  by  a  very  recent  example 
in  that  monstrous  phenomenon  which,  under  the 
name  of  a  trial,  has  driven  us  out  of  Westminster 
Hall  for  a  large  portion  of  my  professional  life. 
No  man  is  less  disposed  than  I  am  to  speak  lightly 
of  great  state  prosecutions,  which  bind  to  their 
duty  those  who  have  no  other  suj^riors,  nor  any 
other  control ;  least  of  all  am  I  capable  of  even 
glancing  a  censure  against  those  who  have  led  to 
or  conducted  the  impeachment,  because  I  respect 
and  love  many  of  them,  and  know  them  to  be 
amongst  the  best  and  wisest  men  in  the  nation.  I 
know  them,  indeed,  so  well,  as  to  be  persuaded 
that  could  they  have  foreseen  the  vast  field  it  was 
to  open,  and  the  length  of  time  it  was  to  occupy, 
they  never  would  have  engaged  in  it ;  for  I  defy 
any  man,  not  illuminated  by  the  Divine  Spirit,  to 
say,  with  the  precision  and  certainty  of  an  Eng- 
lish judge  deciding  upon  evidence  before  him,  that 
Mr.  Hastings  is  guilty  or  not  guilty ;  for  who 
knows  what  is  before  him,  or  what  is  not  ?  Many 
have  carried  what  they  knew  to  their  graves,  and 
the  living  have  lived  long  enough  to  forget  it 
Indeed,  I  pray  God  that  such  another  proceeding 
may  never  exist  in  England  ;  because  I  consider  it 
as  a  dishonor  to  the  constitution,  and  that  it  brings, 
by  its  example,  insecurity  into  the  administration 


436     SPEECH  OF  MR.  EESKINE  ON  THE 

of  justice.*  Every  man  in  civilized  society  has  a 
right  to  hold  his  life,  liberty,  property,  and  reputa- 
tion, under  plain  laws  that  can  be  well  understood, 
and  is  entitled  to  have  some  limited  specific  part 
of  his  conduct,  compared  and  examined  by  their 
standard;  but  he  ought  not  for  seven  years,  no  nor 
for  seven  days,  to  stand  as  a  criminal  before  the 
highest  human  tribunal,  until  judgment  is  bewil- 
dered and  confounded,  to  come  at  last,  perhaps,  to 
defend  himself,  broken  down  with  fatigue,  and  dis- 
pirited with  anxiety,  which,  indeed,  is  my  own  con- 
dition at  this  moment,  who  am  only  stating  the 
case  of  another.  What  then  must  be  the  condi- 
tion of  the  unfortunate  person  whom  you  are  try- 
ing? 

The  next  great  question  is,  how  the  admonitions 
of  these  great  writers  are  to  be  reconciled  with 
what  is  undoubtedly  to  be  found  in  other  parts  of 
their  works;  and  I  think  I  do  not  go  too  far,  when 
I  say,  that  it  ought  to  be  the  inclination  of  every 
person's  mind  who  is  considering  the  meaning  of 
any  writer,  particularly  if  he  be  a  person  of  supe- 
rior learning  and  intelligence,  to  reconcile,  as  much 
as  possible,  all  he  says  upon  any  subject,  and  not 
to  adopt  such  a  construction  as  necessarily  raises 
up  one  part  in  direct  opposition  to  another. 

*  It  was  the  good  fortune  of  Mr.  Erskine  to  remedy,  in  his  own 
person,  the  evil  thus  complained  of,  when  he  presided  as  chancellor 
on  the  trial  of  Lord  Melville. 


TRIAL  OF  THOMAS   HARDY.  437 

The  law  itself,  indeed,  adopts  this  sound  rule  of 
judgment  in  the  examination  of  every  mutter 
which  is  laid  before  it,  for  a  sound  construction; 
and  the  judges,  therefore,  are  bound  by  duty  as 
well  as  reason  to  adopt  it. 

It  appears  to  me,  then,  that  the  only  ambiguity 
which  arises,  or  can  possibly  arise,  in  the  examina- 
tion of  the  great  authorities,  and  in  the  comparison 
of  them  with  themselves,  or  with  one  another,  is 
from  not  rightly  understanding  the  meaning  of  the 
term  overt  act  as  applied  to  this  species  of  treason. 
The  moment  you  get  right  upon  the  true  meaning 
and  signification  of  this  expression,  the  curtain  is 
drawn  up,  and  all  is  light  and  certainty. 

Gentlemen,  an  overt  act  of  the  high  treason 
charged  upon  this  record,  I  take,  with  great  sub- 
mission to  the  court,  to  be  plainly  and  simply  this: 
the  high  treason  charged,  is  the  compassing  or 
imagining,  in  other  words,  the  intending  or  design- 
ing, the  death  of  the  King;  I  mean  his  natund 
death ;  which  being  a  hidden  oj>eration  of  the 
mind,  an  overt  act  is  anything  which  legally 
proves  the  existence  of  such  traitorous  design  and 
intention.  I  say,  that  the  design  against  the  King's 
natural  life,  is  the  high  treason  under  the  first 
branch  of  the  statute;  and  whatever  is  evidence, 
which  may  be  legally  laid  before  a  jury  to  judge 
of  the  traitorous  intention,  is  a  legal  overt  act; 


438  SPEECH   OF   ME.    ERSKIKE   ON   THE 

because  an  overt  act  is  nothing  but  legal  evidence 
embodied  upon  the  record. 

The  charge  of  compassing  being  a  charge  of 
intention,  which,  without  a  manifestation  by  con- 
duct, no  human  tribunal  can  try,  the  statute 
requires  by  its  very  letter,  but  without  which 
letter,  reason  must  have  presumed,  that  the  inten- 
tion to  cut  off  the  Sovereign  should  be  manifested 
by  an  open  act ;  and  as  a  prisoner  charged  with  an 
intention,  could  have  no  notice  how  to  defend 
himself  without  the  charge  of  actions  from  whence 
the  intention  was  to  be  imputed  to  him,  it  was 
always  the  practice,  according  to  the  sound  prin- 
ciples of  English  law  to  state,  upon  the  face  of  the 
indictment,  the  overt  act,  which  the  Crown  charges 
as  the  means  made  use  of  by  the  prisoner  to  effect 
his  traitorous  purpose ;  and  as  this  rule  was  too 
frequently  departed  from,  the  statute  of  the  seventh 
of  King  William  enacted,  for  the  benefit  of  the 
prisoner,  that  no  evidence  should  even  be  given  of 
any  overt  act  not  charged  in  the  indictment.  The 
charge,  therefore,  of  the  overt  acts  in  the  indict- 
ment is  the  notice,  enacted  by  statute,  to  be  given 
to  the  prisoner  for  his  protection,  of  the  means  by 
which  the  Crown  is  to  submit  to  the  jury  the 
existence  of  the  traitorous  purpose,  which  is  the 
crime  alleged  against  him,  and  in  pursuance  of 
which  traitorous  purpose  the  overt  acts  must  also 
be  charged  to  have  been  committed.  Whatever, 


TRIAL  OF   THOMAS  HARDY.  439 

therefore,  is  relevant  or  competent  evidence  to  l>e 
received  in  support  of  the  traitorous  intention,  is 'a 
legal  overt  act,  and  what  acts  are  competent  to 
that  purpose,  are,  as  in  all  other  cases,  matter  of  law 
for  the  judges;  but  whether,  after  the  overt  acts 
are  received  upon  the  record  as  competent,  and  are 
established  by  proof  upon  the  trial,  they  be  sufti- 
cient  or  insufficient  in  the  particular  instance,  to 
convince  the  jury  of  the  traitorous  compassing  or 
intention,  is  a  mere  matter  of  fact,  which,  from  its 
very  nature,  can  be  reduced  to  no  other  standard 
than  that  which  each  man's  own  conscience  and 
understanding  erects  in  his  mind,  as  the  arbiter  of 
his  judgment.  This  doctrine  is  by  no  means  new 
nor  peculiar  to  high  treason,  but  pervades  the 
whole  law,  and  may  be  well  illustrated  in  a  memor- 
able case  lately  decided  upon  writ  of  error  in  the 
House  of  Lords,  and  which  must  be  in  the  memory 
of  all  the  judges  now  present,  who  take  a  part  in 
its  decision ;  there  the  question  was  whether,  uj>on 
the  establishment  of  a  number  of  facts  by  legal 
'evidence,  the  defendant  had  knowledge  of  a  fact, 
the  knowing  of  which  would  leave  him  defenceless. 
To  draw  that  question  from  the  jury  to  the  judges, 
I  demurred  to  the  evidence,  saying,  that  though 
each  part  of  it  was  legally  admitted,  it  was  for  the 
law,  by  the  mouth  of  the  judges,  to  pronounce 
whether  this  fact  of  knowledge  could  legally  be 
inferred  from  it;  but  the  Lords,  with  the  assent  of 


440  SPEECH    OF    MR.    ERSKINE    ON    THE 

all  the  judges,  decided,  to  my  perfect  satisfaction, 
that  such  a  demurrer  to  the  evidence  was  irregular 
and  invalid ;  that  the  province  of  the  jury  over 
the  effect  of  evidence,  ought  not  to  be  so  trans- 
ferred to  the  judges,  and  converted  into  matter  of 
law;  that  what  was  relevant  evidence  to  come 
before  a  jury,  was  the  province  of  the  court,  but 
that  the  conclusion  to  be  drawn  from  admissible 
evidence,  was  the  unalienable  province  of  the 
country. 

To  apply  that  reasoning  to  the  case  before  us : 
The  matter  to  be  inquired  of  here  is  the  fact  of 
the  prisoner's  intention,  as  in  the  case  I  have  just 
cited  it  was  the  fact  of  the  defendant's  knowledge. 
The  charge  of  a  conspiracy  to  depose  the  King  is, 
therefore,  laid  before  you  to  establish  that  inten- 
tion ;  its  competency  to  be  laid  before  you  for  that 
purpose  is  not  disputed ;  I  am  only  contending, 
with  all  reason  and  authority  on  my  side,  that  it  is 
to  be  submitted  to  your  consciences  and  under- 
standings, whether,  even  if  you  believed  the  overt 
act,  you  believe  also  that  it  proceeded  from  a 
traitorous  machination  against  the  life  of  the  King. 
I  am  only  contending  that  these  two  beliefs  must 
coincide  to  establish  a  verdict  of  guilty.  I  am  not 
contending  that,  under  circumstances,  a  conspiracy 
to  depose  the  King,  and  to  annihilate  his  regal 
capacity,  may  not  be  strong  and  satisfactory  evi- 
dence of  the  intention  to  destroy  his  life;  but  only 


TRIAL  OF  THOMAS   HARDY.  441 

that  in  this,  as  in  every  other  instance,  it  is  for 
you  to  collect  or  not  to  collect  this*  treason  against 
the  King's  life,  according  to  the  result  of  your  con- 
scientious belief  and  judgment,  from  the  acts  of 
the  prisoner  laid  before  you ;  and  that  the  estab- 
lishment of  the  overt  act,  even  if  it  were  estab- 
lished, does  not  establish  the  treason  against  the 
King's  life,  by  a  consequence  of  law ;  but,  on  the 
contrary,  the  overt  act,  though  punishable  in 
another  shape,  as  an  independent  crime,  is  a  dead 
letter  upon  this  record,  unless  you  believe,  exer- 
cising your  exclusive  jurisdiction  over  the  facts 
laid  before  you,  that  it  was  committed  in  accom- 
plishment of  the  treason  against  the  natural  life 
of  the  King. 

Gentlemen,  this  particular  crime  of  compassing 
the  King's  death,  is  so  complete  an  anomaly,  be- 
ing wholly  seated  in  unconsummated  intention,  that 
the  law  cannot  depart  from  describing  it  accord- 
ing to  its  real  essence,  even  when  it  is  followed  by 
his  death;  a  man  cannot  be  indicted  for  killing 
the  King,  as  was  settled  in  the  case  of  the  regicides 
of  Charles  the  First,  after  long  consultation  among 
all  the  judges;  it  was  held  that  the  very  words  of 
the  statute  must  be  pursued,  and  that  although 
the  King  was  actually  murdered,  the  prisoners  who 
destroyed  him  could  not  be  charged  with  the  act 
itself,  as  high  treason,  but  with  the  comjwssing  of 
his  death;  the  very  act  of  the  executioner  in  be- 


442  SPEECH   OF   ME.   EESKINE   ON   THE 

heading  him  being  only  laid  as  the  overt  act  upon 
the  record.  There,  though  the  overt  act  was  so 
connected  with,  as  to  be  even  inseparable  from  the 
traitorous  intention,  yet  they  were  not  confounded, 
because  of  the  effect  of  the  precedent  in  dissimilar 
cases ;  and  although  the  regicides  came  to  be  tried 
immediately  on  the  restoration  of  the  King,  in  the 
day-spring  of  his  authority,  and  before  high  pre- 
rogative judges,  and  under  circumstances  when,  in 
any  country  but  England,  their  trial  would  have 
been  a  mockery,  or  their  execution  have  been 
awarded  without  even  the  forms  of  trial ;  yet  in 
England,  that  sacred  liberty,  which  has  forever 
adorned  the  constitution,  refused  to  sacrifice  to 
zeal  or  enthusiasm,  either  the  substance  or  the 
forms  of  justice.  Hear  what  the  chief  baron  pro- 
nounced upon  that  occasion :  "These  persons  are 
to  be  proceeded  with  according  to  the  laws  of  the 
land,  and  I  shall  speak  nothing  to  you  but  what 
are  the  words  of  the  law.  By  the  statute  of 
Edward  the  Third,  it  is  made  high  treason  to 
compass  and  imagine  the  death  of  the  King ;  in  no 
case  else  imagination  or  compassing,  without  an 
actual  effect,  is  punishable  by  law."  He  then 
speaks  of  the  sacred  life  of  the  King,  and  speaking 
of  the  treason,  says :  "  The  treason  consists  in  the 
wicked  imagination  which  is  not  apparent;  but 
when  this  poison  swells  out  of  the  heart,  and 
breaks  forth  into  action,  in  that  case  it  is  high 


TRIAL   OF   THOMAS   HARDY.  443 

treason.  Then  what  is  an  overt  act  of  an  imagi- 
nation, or  compassing  of  the  king's  death  ?  Truly, 
it  is  any  thing  which  shows  what  the  imagination 
of  the  heart  is." 

Indeed,  gentlemen,  the  proposition  is  so  clear, 
that  one  gets  confounded  in  the  argument  from 
the  very  simplicity  of  it ;  but  still  I  stand  in  a  sit- 
uation which  I  am  determined  at  all  events  to  ful- 
fill to  the  utmost;  and  I  shall,  therefore,  not  leave 
the  matter  upon  these  authorities,  but  will  bring  it 
down  to  our  own  times,  repeating  my  challenge  to 
have  produced  one  single  authority  in  contradic- 
tion.    Lord  Coke,  in  his  Third  Institute,  pages  11 
and  12,  says :     "  The  indictment  must  charge  that 
the  prisoner  traitorously  compassed  and  imagined 
the  death  and  destruction  of  the  king."     He  says, 
too :     "  There  must  be  a  compassing  or  imagina- 
tion ;  for    an   act,  without  compassing,  intent,  or 
imagination,  is  not  within  the  act,  as  appeareth  by 
the  express  letter  thereof.     Et  actus  non  facit  reum, 
nisi  men*  sit  rea"     Nothing  in  language  can  more 
clearly  illustrate  my   position.      The  indictment, 
like  every  other  indictment,  must  charge  distinctly 
and  specifically  the  crime  ;  that  charge,  must,  there- 
fore,  be  in   the  very  words  of  the  statute  which 
creates  the  crime;  the  crime  created  by  the  statute 
not  being  the  perpetration  of  any  act,  but  being 
in  the  rigorous  severity  of  the  law,  the  very  con- 
templation, intention  and  contrivance  of  a  purpose 


444  SPEECH    OF    MR.    EESKINE   ON    THE 

directed  to  an  act;  that  contemplation,  purpose, 
and  contrivance,  must  be  found  to  exist,  without 
which,  says  Lord  Coke,  there  can  be  no  compass- 
ing; and  as  the  intention  of  the  mind  cannot  be 
investigated  without  the  investigation  of  conduct, 
the  overt  act  is  required  by  the  statute,  and  must 
be  laid  in  the  indictment  and  proved.  It  follows 
from  this  deduction,  that  upon  the  clear  principles 
of  the  English  law,  every  act  may  be  laid  as  an 
overt  act  of  compassing  the  King's  death,  which 
may  be  reasonably  considered  to  be  relevant  and 
competent  to  manifest  that  intention ;  for,  were  it 
otherwise,  it  would  be  shutting  out  from  the  view 
of  the  jury,  certain  conduct  of  the  prisoner,  which 
might,  according  to  circumstances,  lead  to  manifest 
the  criminal  intention  of  his  mind ;  and  as  more 
than  one  overt  act  may  be  laid,  and  even  overt 
acts  of  different  kinds,  though  not  in  themselves 
substantively  treason,  the  judges  appear  to  be 
justified  in  law  when  they  ruled  them  to  be  overt 
acts  of  compassing  the  death  of  the  King  ;  because 
they  are  such  acts  as  before  the  statute  of  King 
William,  which  required  that  the  indictment  should 
charge  all  overt  acts,  would  have  been  held  to  be 
relevant  proof;  of  which  relevancy  of  proof  the 
judges  are  to  judge  as  matter  of  law;  and  there- 
fore being  relevant  proof,  must  also  be  relevant 
matter  of  charge,  because  nothing  can  be  rele- 
vantly charged  which  may  not  also  be  relevantly 


TRIAL  OF  THOMAS  HARDY.        445 

admitted  to  proof.  These  observations  explain  to 
the  meanest  capacity  in  what  sense  Lord  Coke 
must  be  understood,  when  he  says,  in  the  very 
same  page,  that  "  a  preparation  to  depose  the 
king,  and  to  take  the  king  by  force  and  strong 
hand,  until  he  has  yielded  to  certain  demand*,  is  a 
sufficient  overt  act  to  prove  the  com  pissing  of  the 
king's  death."  lie  does  not  say  as  a  proposition 
of  law,  that  he  who  prepares  to  seize  the  king, 
compasseth  his  death,  but  that  a  preparation  to 
seize  him  is  a  sufficient  overt  act  to  prove  the  coiu- 
passing ;  and  he  directly  gives  the  reason,  "  because 
of  the  strong  tendency  it  has  to  that  end."  This 
latter  sentence  destroys  all  ambiguity.  I  agree 
perfectly  with  Lord  Coke,  and  I  think  every  judge 
would  so  decide,  upon  the  general  principles  of  law 
and  evidence,  without  any  resort  to  his  authority 
for  it;  and  for  this  plain  and  obvious  reason  :  The 
judges  who  are  by  law  to  decide  u|X)ii  the  rele- 
vancy or  competency  of  the  proof,  in  every  mat- 
ter, criminal  and  civil,  have  immemorially  sanc- 
tioned the  indispensable  necessity  of  charging  the 
traitorous  intention  as  the  crime,  before  it  was  re- 
quired by  the  statute  of  King  William. 

As  the  crime  is  in  its  nature  invisible  and  inscru- 
table, until  manifested  by  .such  conduct  as  in  the  eye 
of  reason  is  indicative  of  the  intention,  which  consti- 
tutes the  crime ;  no  overt  act  is  therefore  held  to 
be  sufficient  to  give  jurisdiction,  even  to  a  jury  to 


446  SPEECH   OF    ME.    EESKINE   ON   THE 

draw  the  inference  in  fact  of  the  traitorous  pur- 
pose, but  such  acts  from  whence  it  may  be  reason- 
ably inferred;  and  therefore  as  the  restraint  and 
imprisonment  of  a  prince  has  a  greater  tendency 
to  his  destruction  than  in  the  case  of  a  private 
man,  such  conspiracies  are  admitted  to  be  laid  as 
overt  acts  upon  this  principle;  that  if  a  man  does 
an  act  from  whence  either  an  inevitable  or  a  mainly 
probable  consequence  may  be  expected  to  follow, 
much  more  if  he  persists  deliberately  in  a  course  of 
conduct,  leading  certainly  or  probably  to  any  given 
consequence,  it  is  reasonable  to  believe  that  he  fore- 
saw such  consequence,  and  by  pursuing  his  pur- 
pose with  that  foreknowledge,  the  intention  to  pro- 
duce the  consequence  may  be  fairly  imputed.  But 
then  all  this  is  matter  of  fact  for  the  jury,  from  the 
evidence,  not  matter  of  law  for  the  court;  further 
than  it  is  the  privilege  and  duty  of  the  judge  to 
direct  the  attention  of  the  jury  to  the  evidence, 
and  to  state  the  law  as  it  may  result  from  the  dif- 
ferent views  the  jury  may  entertain  of  the  facts ; 
and  if  such  acts  could  not  be  laid  as  overt  acts, 
they  could  not  be  offered  in  evidence ;  and  if  they 
could  not  be  offered  in  evidence,  the  mind  of  the 
prisoner,  which  it  was  the  object  of  the  trial  -to 
lay  open  as  a  clue  to  his  intention,  would  be  shut 
up  and  concealed  from  the  jury,  whenever  the 
death  of  the  sovereign  was  sought  by  circuitous, 
but  obvious  means,  instead  of  by  a  direct  and 


TRIAL  OF  THOMAS  HARDY.        447 

murderous  machination.  But  when  they  are  thus 
submitted,  as  matter  of  charge  and  evidence  to 
prove  the  traitorous  purpose  which  is  the  crime, 
the  security  of  the  King  and  of  the  subject  is 
equally  provided  for ;  all  the  matter  which  has  a 
relevancy  to  the  crime,  is  chargeable  and  prove- 
able,  not  substantively,  to  raise  from  their  establish- 
ment a  legal  inference,  but  to  raise  a  presumption 
in  fact,  capable  of  being  weighed  by  the  jury  with 
all  the  circumstances  of  the  transaction,  as  offered 
to  the  Crown  and  the  prisoner :  their  province 
being  finally  to  say,  not  what  was  the  possible  or 
the  probable  consequence  of  the  overt  act  laid  in 
the  indictment,  but  whether  it  has  brought  them 
to  a  safe  and  conscientious  judgment  of  the  guilt 
of  the  prisoner ;  i.  e.,  of  his  guilt  in  compassing 
the  death  of  the  King,  which  is  the  treason  charged 
in  the  indictment. 

Lord  Hale  is,  if  possible,  more  direct  and  ex- 
plicit upon  the  subject.  He  says,  page  107,  "  The 
words  compass  or  imagine,  are  of  a  great  latitude ; 
they  refer  to  the  purpose  or  design  of  the  mind 
or  will,  though  the  purpose  or  design  takes  not 
effect ;  but  compassing  or  imagining,  singly  of 
itself  is  an  internal  act,  and,  without  something 
to  manifest  it,  could  not  possibly  fall  under 
any  judicial  cognizance  but  of  God  alone ;  and 
therefore  this  statute  requires  such  an  overt 
act  aa  may  render  the  compassing  or  imagining 


448  SPEECH   OF   MR.    EKSKINE   ON   THE 

capable  of  a  trial  and  sentence  by  human  judica- 
tures." Now  can  any  man  possibly  derive  from 
such  a  writing,  proceeding,  too,  from  an  author  of 
the  character  of  Lord  Hale,  that  an  overt  act  of 
compassing,  might  in  his  judgment  be  an  act  com- 
mitted inadvertently  without  the  intention?  Can 
any  man  gather  from  it,  that  a  man,  by  falling  into 
bad  company,  can  be  drawn  in  to  be  guilty  of  this 
species  of  treason  by  rash  conduct,  while  the  love 
of  his  sovereign  was  glowing  in  his  bosom?  Can 
there  be  any  particular  acts  which  can  entitle  a 
judge  or  counsel  to  pronounce  as  a  matter  of  law, 
what  another  man  intends?  or  that  what  a  man 
intends  is  not  a  matter  of  fact  ?  Is  there  any  man 
that  will  meet  the  matter  fairly,  and  advance  and 
support  that  naked  proposition  ?  At  all  events,  it 
is  certainly  not  a  proposition  to  be  dealt  with  pub- 
licly ;  because  the  man  whose  mind  is  capable  even 
of  conceiving  it,  should  be  treasured  up  in  a 
museum,  and  exhibited  there  as  a  curiosity,  for 
money. 

Gentlemen,  all  I  am  asking,  however,  from  my 
argument,  and  I  defy  any  power  of  reason  upon 
earth  to  move  me  from  it,  is  this ;  that  the  prisoner 
being  charged  with  intending  the  King's  death,  you 
are  to  find  whether  this  charge  be  founded  or  un- 
founded; and  that,  therefore,  put  upon  the  record 
what  else  you  will — prove  what  you  will — read 
these  books  over  and  over  again — and  let  us  stand 


TRIAL  OF  THOMAS  HARDY.        449 

here  a  year  and  a  day  in  discoursing  concerning 
them — still  the  question  must  return  at  last  to 
what  you,  and  you  only,  can  resolve,  is  he  guilty 
of  that  base,  detestable  intention,  to  destroy  the 
King?  Not  whether  you  incline  to  believe  that  he 
is  guilty  ;  not  whether  you  suspect ;  nor  whether  it 
be  probable ;  not  whether  he  may  be  guilty ;  no, 
but  that  proveably  he  is  guilty.  If  you  can  say 
this  upon  the  evidence,  it  is  your  duty  to  say  eo, 
and  you  may,  with  a  tranquil  conscience,  return  to 
your  families;  though  by  your  judgment  the 
unhappy  object  of  it  must  return  no  more  to  his. 
Alas !  gentlemen,  what  do  I  say  ?  He  has  no 
family  to  return  to ;  the  affectionate  partner  of  his 
life  has  already  fallen  a  victim  to  the  surprise  and 
horror  which  attended  the  scene  now  transacting. 
But  let  that  melancholy  reflection  pass,  it  should 
not  perhaps,  have  been  introduced,  it  certainly 
ought  to  have  no  effect  upon  you,  who  are  to  judge 
upon  your  oaths.  I  do  not  stand  here  to  desire 
you  to  commit  perjury  from  compassion ;  but  at 
the  same  time  my  earnestness  may  be  forgiven, 
since  it  proceeds  from  a  weakness  common  to  us 
all.  I  claim  no  merit  with  the  prisoner  for  my 
zeal ;  it  proceeds  from  a  selfish  principle  inherent 
in  the  human  heart  I  am  counsel,  gentlemen,  for 
myself.  In  every  word  I  utter,  I  feel  that  I  am 
pleading  for  the  safety  of  my  own  life,  for  the  lives 
of  my  children  after  me,  for  the  happiness  of  my 
29  B 


450     SPEECH  OF  MR.  ERSKINE  ON  THE 

country,  and  for  the  universal  condition  of  civil 
society  throughout  the  world. 

But  let  us  return  to  the  subject,  and  pursue  the 
doctrine  of  Lord  Hale  upon  the  true  interpretation 
of  the  term  overt  act,  as  applicable  to  this  branch 
of  treason.  Lord  Hale  says,  and  I  do  beseech 
most  earnestly  the  attention  of  the  court  and  jury 
to  this  passage  :  "  If  men  conspire  the  death  of  the 
King,  and  thereupon  provide  weapons,  or  send  let- 
ters, this  is  an  overt  act  within  the  statute."  Take 
this  to  pieces,  and  what  does  it  amount  to  ?  "  If 
men  conspire  the  death  of  the  King,"  that  is  the 
first  thing,  viz.,  the  intention  ;  "  and  thereupon," 
that  is,  in  pursuance  of  that  wicked  intention ; 
"  provide  weapons,  or  send  letters  for  the  execution 
thereof,"  i.  e.,  for  the  execution  of  that  destruc- 
tion of  the  King  which  they  have  meditated  ;  "  this 
is  an  overt  act  within  the  statute."  Surely  the 
meaning  of  all  this  is  self-evident.  If  the  inten- 
tion be  against  the  King's  life,  though  the  conspir- 
acy does  not  immediately  and  directly  point  to  his 
death,  yet  still  the  overt  act  will  be  sufficient  if  it 
be  something  which  has  so  direct  a  tendency  to 
that  end,  as  to  be  competent,  rational  evidence  of 
the  intention  to  obtain  it.  But  the  instances  given 
by  Lord  Hale  himself  furnish  the  best  illustration : 
"  If  men  conspire  to  imprison  the  King  by  force 
and  a  strong  hand,  until  he  has  yielded  to  certain 
demands,  and  for  that  purpose  gather  company,  or 


TRIAL   OF   THOMAS    HARDY. 

write  letters,  that  is  an  overt  act  to  prove  the  com- 
passing the  King's  death,  as  it  was  held  in  Lord 
Cobham's  case,  by  all  the  judges."  In  this  sen- 
tence Lord  Hale  does  not  depart  from  that  precis- 
ion which  so  eminently  distinguishes  all  his  writ- 
ings; he  does  not  say,  that  if  men  conspire  to 
imprison  the  king  until  he  yields  to  certain  de- 
mands, and  for  that  purpose  to  do  so  and  so,  this  is 
high  treason — no,  nor  even  an  overt  act  of  high 
treason,  though  he  might  in  legal  language  cor- 
rectly have  said  so;  but  to  prevent  the  possibility 
of  confounding  the  treason  with  matter  which  may 
be  legally  charged  as  relevant  to  the  proof  of  it, 
he  follows  Lord  Coke's  expression  in  the  third 
institute,  and  says:  "This  is  an  overt  act  to  prove 
the  compassing  of  the  King's  death,"  and  as  if  by 
this  mode  of  expression  he  had  not  done  enough 
to  keep  the  ideas  asunder,  and  from  abundant 
regard  for  the  rights  and  liberties  of  the  subject, 
he  immediately  adds:  "But  then  there  must  be 
an  overt  act  to  prove  that  conspiracy;  and  then 
that  overt  act  to  prove  such  design,  is  an  overt  act 
to  prove  the  compassing  of  the  denth  of  the  King. 
The  language  of  this  sentence  labors  in  the  ear 
from  the  excessive  caution  of  the  writer;  afraid 
that  his  reader  should  jump  too  fast  to  his  conclu- 
sion upon  a  subject  of  such  awful  moment,  he  pulls 
him  back,  after  he  has  read  that  a  conspiracy  to 
imprison  the  King  is  an  overt  act  to  prove  the 


452  SPEECH   OF   MR.    ERSKESTE   ON   THE 

compassing  of  his  death,  and  says  to  him :  But, 
recollect  that  there  must  be  an  overt  act  to  prove, 
in  the  first  place,  that  conspiracy  to  imprison  the 
King,  and  even  then,  that  intention  to  imprison 
him  so  manifested  by  the  overt  act,  is  but  in  its 
turn  an  overt  act  to  prove  the  compassing  or  in- 
tention to  destroy  the  King.  Nor  does  the  great 
and  benevolent  Hale  rest  even  here,  but  after  this 
almost  tedious  perspicuity,  he  begins  the  next  sen- 
tence with  this  fresh  caution  and  limitation  :  "  But 
then  this  must  be  be  intended  of  a  conspiracy,  forci- 
bly to  detain  and  imprison  the  King."  What  then 
is  a  conspiracy  forcibly  to  imprison  the  King  ? 
Surely  it  can  require  no  explanation  :  it  can  only 
be  a  direct  machination  to  seize  and  detain  his 
person  by  rebellious  force.  Will  this  expression 
be  satisfied  by  a  conspiracy  to  seize  speculatively 
upon  his  authority,  by  the  publication  of  pamph- 
lets, which,  by  the  inculcation  of  republican  prin- 
ciples, may  in  the  eventual  circulation  of  a  course 
of  years,  perhaps  in  a  course  of  centuries,  in  this 
King's  time,  or  in  the  time  of  a  remote  successor, 
debauch  men's  minds  from  the  English  constitution, 
and,  by  the  destruction  of  monarchy,  involve  the 
life  of  the  Monarch  ?  Will  any  man  say  that  this 
is  what  the  law  means  by  a  conspiracy  against  the 
King's  government,  supposing  even  that  a  con- 
spiracy against  his  government  were  synonymous 
with  a  design  upon  his  life  ?  Can  any  case  be  pro- 


TRIAL  OF   THOMAS   HARDY.  453 

dueed  where  a  person  has  been  found  guilty  of 
high  treason,  under  this  branch  of  the  statute, 
where  no  war  has  been  actually  levied,  unless 
where  the  conspiracy  has  been  a  forcible  invasion 
of  the  King's  personal  liberty  or  security?  I  do 
not  mean  to  say  that  a  conspiracy  to  levy  war,  may 
not,  in  many  instances,  be  laid  as  an  overt  act  of 
compassing  the  King's  death,  because  the  war  may 
be  mediately  or  immediately  pointed  distinctly  to 
his  destruction  or  captivity;  and  as  Lord  Hale 
truly  says:  "small  is  the  distance  between  the 
prisons  and  graves  of  princes."  But  multiply  the 
instances  as  you  will,  still  the  principle  presents 
itself.  The  truth  of  this  very  maxim,  buUt  upon 
experience,  renders  an  overt  act  of  this  description 
rational  and  competent  evidence  to  be  left  to  a 
jury,  of  a  design  against  the  King's  life;  but  it 
does  not,  therefore,  change  the  nature  of  the  crime, 
nor  warrant  any  court  to  declare  the  overt  act  to 
be  legally  and  conclusively  indicative  of  the  trai- 
torous intention ;  because,  if  this  be  once  admitted 
to  be  law,  and  the  jury  are  bound  to  find  the  tiv.-i- 
son  upon  their  belief  of  the  existence  of  the  ovi-rt 
act,  the  trial  by  the  country  is  at  an  end,  and  tin- 
judges  are  armed  with  an  arbitrary  uncontrollable 
dominion  over  the  lives  and  liberties  of  the  nation. 
Gentlemen,  I  will  now  proceed  to  show  you  that 
the  doctrines  which  I  am  insisting  on  have  been  held 
by  all  the  great  judges  of  this  country,  in  even  the 


454  SPEECH   OF   ME.    ERSKINE   ON   THE 

worst  of  times,  and  that  they  are,  besides,  not  at 
all  peculiar  to  the  case  of  high  treason,  but  pervade 
the  whole  system  of  the  criminal  law.  Mr.  Justice 
Forster,  so  justly  celebrated  for  his  writings,  lays 
down  the  law  thus :  It  may  be  laid  down  as  a  gen- 
eral rule,  that  "indictments  founded  upon  penal 
statutes,  especially  the  most  penal,  must  pursue 
the  statute  so  as  to  bring  the  party  within  it." 
And  this  general  rule  is  so  expressly  allowed,  to 
have  place,  in  high  treason,  that  it  is  admitted  on 
all  hands,  that  an  indictriient  would  be  radically 
and  incurably  bad,  unless  it  charged  the  compass- 
ing of  the  King's  death,  as  the  leading  and  funda- 
mental .  averment,  and  unless  it  formerly  charged 
the  overt  act  to  be  committed  in  order  to  effectuate 
the  traitorous  purpose.  Nobody  ever  denied  this 
proposition;  and  the  present  indictment  is  framed 
accordingly.  Now  it  is  needless  to  say,  that  if  the 
benignity  of  the  general  law  requires  this  precision 
in  the  indictment,  the  proof  must  be  correspond- 
ingly precise,  for  otherwise  the  subject  would 
derive  no  benefit  from  the  strictness  of  the  indict- 
ment; the  strictness  of  which  can  have  no  other 
meaning  in  law  or  common  sense,  than  the  protec- 
tion of  the  prisoner  ;  for  if,  though  the  indictment 
must  directly  charge  a  breach  of  the  very  letter  of 
the  statute,  the  prisoner  could,  nevertheless,  be 
convicted  by  evidence  not  amounting  to  a  breach 
of  the  letter,  then  the  strictness  of  the  indictment 


TRIAL  OF  THOMAS  HARDY.        455 

would  not  only  be  no  protection  to  the  prisoner, 
but  a  direct  violation  of  the  first  principles  of 
justice  criminal  and  civil,  which  call  universally 
for  the  proof  of  all  material  averments  in  every 
legal  proceeding.  But  Mr.  Justice  Forster  ex- 
pressly  adverts  to  the  necessary  severity  of  proof, 
as  well  as  of  charge — for  he  says,  that  "  although 
a  case  is  brought  within  the  reason  of  a  penal 
statute,  and  within  the  mischief  to  be  prevented, 
yet,  if  it  does  not  come  within  the  unequivocal 
letter,  the  benignity  of  the  law  interposeth."  If 
the  law  then  be  thus  severe  in  the  interpretation 
of  every  penal  proceeding,  even  down  to  an  action 
for  the  killing  of  a  hare  or  a  partridge,  are  its 
constructions  only  to  be  enlarged  and  extended  as 
to  the  statute  of  high  treason,  although  the  single 
object  of  passing  it  was  to  guard  against  construc- 
tions? 

Gentlemen,  the  reason  of  the  thing  is  so  palpably 
and  invincibly  in  favor  of  this  analogy,  that  it 
never  met  witli  a  direct  opposition.  The  Attorney- 
General  himself  distinctly  admits  it  in  one  part  of 
his  address  to  you,  though  he  seems  to  deny  it  in 
another.  I  hope  that  when  I  state  one  part  of  lii- 
speech  to  be  in  diametrical  opposition  to  another. 
he  will  not  suppose  that  I  attribute  the  inconsist- 
ency to  any  defect,  either  in  his  understanding  or 
his  heart;  far  from  it — they  arise,  I  am  convinced, 


456  SPEECH    OF    MR.    ERSKINE   ON   THE 

from  some  of  the  authorities  not  being  sufficiently 
understood. 

In  the  beginning  of  his  speech  he  admits  that 
the  evidence  must  be  satisfactory  and  convincing 
as  to  the  intention ;  but  in  the  latter  part  he  seems, 
as  it  were,  to  take  off  the  effect  of  that  admission. 
I  wish  to  give  you  the  very  words.  I  took  them 
down  at  the  time ;  and  if  I  do  not  state  them  cor- 
rectly, I  desire  to  be  corrected.  "I  most  distinctly 
disavow,"  said  my  honorable  friend,  "every  case 
of  construction.  I  most  distinctly  disavow  any 
like  case  of  treason  not  within  the  letter  of  the 
statute.  I  most  distinctly  disavow  cumulative 
treason.  I  most  distinctly  disavow  enhancing 
guilt  by  parity  of  reason.  The  question  undoubt- 
edly is,  whether  the  proof  be  full  and  satisfactory 
to  your  reasons  and  consciences  that  the  prisoner 
is  guilty  of  the  treason  of  compassing  the  King's 
death."  Gentlemen,  I  hope  that  this  will  always 
with  equal  honor  be  admitted.  Now  let  us  see 
how  the  rest  of  the  learned  gentleman's  speech 
falls  in  with  this.  For  he  goes  on  to  say,  that  it 
is  by  no  means  necessary  that  the  distinct,  specific 
intention  should  pre-exist  the  overt  act.  "If  the 
overt  act,"  says  he,  "be  deliberately  committed,  it 
is  a  compassing."  But  how  so,  if  the  intention  be 
admitted  to  be  the  treason?  What  benefit  is  ob- 
tained by  the  rigorous  demand  of  the  statute, 
that  the  compassing  of  the  King's  death  shall  be 


TRIAL  OF  THOMAS   HARDY.  457 

charged  by  the  indictment  as  the  crime,  if  a  crime 
different,  or  short  of  it,  can  be  substituted  for  it  in 
the  proof?  And  how  can  the  statute  of  Richard 
the  Second  be  said  to  be  repealed,  which  made  it 
high  treason  to  compass  to  depose  the  King,  inde- 
pendently of  intention  upon  his  life,  if  the  law 
shall  declare,  notwithstanding  the  repeal,  that  they 
are  synonymous  terms,  and  that  the  one  conclus- 
ively involves  the  other? 

Gentlemen,  if  we  examine  the  most  prominent 
cases,  which  have  come  in  judgment  before  judges 
of  the  most  unquestionable  authority,  and  after 
the  constitution  had  become  fixed,  vou  will  find 

*     «/ 

every  thing  that  I  have  been  saying  to  you  justi- 
fied and  confirmed. 

The  first  great  state  trial,  after  the  revolution, 
was  the  ease  of  Sir  John  Freind,  a  conspirator  in 
the  assassination  plot.  Sir  John  Freind  was 
indicted  for  compassing  and  imagining  the  death 
of  King  William ;  and  the  overt  acts  charged,  and 
principally  relied  on,  were,  first,  the  sending  Mr. 
Charnock  into  France  to  King  James,  to  desire 
him  to  persuade  the  French  King  to  send  forces 
over  to  Great  Britain,  to  levy  war  against,  and  to 
depose  the  King,  and  that  Mr.  Charnock  was  actu- 
ally sent ;  and,  secondly,  the  preparing  men  to  be 
levied  to  form  a  corps  to  assist  in  the  restoration  of 
the  pretender,  and  the  expulsion  of  King  William, 
of  which  Sir  John  Freind  was  to  be  colonel.  JH 


458        srEECH  OF  ME.  ERSKINE  ON  THE 

this  case,  if  the  proofs  were  not  to  be  wholly  dis- 
credited, and  the  overt  acts  were  consequently 
established,  they  went  rationally  to  convince  the 
mind  of  every  man  of  the  pre-existing  intention  to 
destroy  the  King.  The  conspiracy  was  not  to  do 
an  act  which,  though  it  might  lead  eventually  and 
speculatively  to  the  King's  death,  might  not  be 
foreseen  or  designed  by  those  who  conspired 
together;  the  conspiracy  was  not  directed  to  an 
event,  probably  leading  to  another,  and  a  different 
one,  and  from  the  happening  of  which  second,  a 
third,  still  different,  might  be  engendered,  which 
third  might  again  lead,  in  its  consequences,  to  a 
fourth  state  of  things,  which  might,  in  the  revolu- 
tion of  events,  bring  on  the  death  of  the  King, 
though  never  compassed  or  imagined.  Freind's 
conspiracy,  on  the  contrary,  had  for  its  direct  and 
immediate  object  the  restoration  of  the  pretender 
to  the  throne,  by  the  junction  of  foreign  and  rebel- 
lious force.  In  my  opinion,  and  I  am  not  more 
disposed  than  others  to  push  things  beyond  their 
mark  in  the  administration  of  criminal  justice,  Sir 
John  Freind,  if  the  evidence  against  him  found 
credit  with  the  jury,  could  have  no  possible 
defence ;  since  the  evidence  went'  directly  to  prove 
the  dispatch  of  Charnock  to  France,  under  his 
direction,  to  invite  the  French  King  to  bring  over 
the  pretender  into  England,  and  to  place  him  on 
the  throne.  The  intention,  therefore,  of  Sir  John 


TRIAL  OF  THOMAS  HARDY.        459 

Freind,  to  cut  off  King  William,  was  a  clear  infer- 
ence from  the  overt  act  in  question ;  not  an  infer- 
ence of  law  for  the  court,  but  of  fact  for  the  jury, 
under  the  guidance  of  plain  common  sense ;  because 
the  consequence  of  the  pretender*s  regaining  the 
throne,  must  have  been  the  attainder  of  King 
William  by  act  of  Parliament.  Some  gentlemen 
seem  to  look  as  if  they  thought  not,  but  I  should 
be  glad  to  hear  the  position  contradicted.  I 
repeat,  that  if  the  pretender  had  been  restored,  as 
King  of  England,  the  legal  consequence  would 
have  been,  that  King  William  would  have  been  a 
traitor  and  an  usurper,  and  subject  as  such  to  be 
tried  at  the  Old  Bailey,  or  wherever  else  the  King, 
who  took  his  place,  thought  fit  to  bring  him  to 
judgment.  From  these  premises,  therefore,  there 
could  be  no  difficulty  of  inferring  the  intention ; 
and,  therefore,  if  ever  a  case  existed  where,  from 
the  clearness  of  the  inference,  the  province  of  the 
jury  might  have  been  overlooked,  and  the  overt 
act  confounded  with  the  treason,  it  was  in  the 
instance  of  Freind ;  but  so  far  was  this  from  being 
the  case,  that  you  will  find,  on  the  contrary,  evn-y 
thing  I  have  been  saying  to  you,  since  I  began  to 
address  you,  summed  up  and  confirmed  by  that 
most  eminent  magistrate,  Lord  Chief  Justice  Holt, 
who  presided  upon  that  trial. 

He  begins  thus:     "Gentlemen  of  the  jury,  look 
ye,  the  treason  that  is  mentioned  in  the  indictment 


460  SPEECH    OF    MR.    ERSKINE    ON   THE 

is  conspiring,  compassing,  and  imagining  the  death 
of  the  King.     To  prove  the  conspiracy  and  design 
of  the  King's  death,  two  principal  overt  acts  are 
insisted  on."     He  does  not  consider  the  overt  act 
of  conspiracy  and  consultation  to  be  the  treason, 
but  evidence,  as  it  undoubtedly  was  in  that  case, 
to   prove  the  compassing   the    death.     The  chief 
justice  then  states  the  two  overt  acts  above  men- 
tioned, and  sums  up  the  evidence  for  and  against 
the  prisoner,  and  leaves  the  intention  to  the  jury 
as   matter  of  fact.     For  it  is   not  till  afterwards 
that  he  comes  to  answer  the  prisoner's  objection  in 
point  of  law,  as  the  chief  justice  in  terms  puts  it: 
"There  is  another  thing,"  said  Lord  Chief  Justice 
Holt,  "he  did  insist  upon,  and  that  is  matter  of 
law.     The  statute  of  the  twenty-fifth  of  Edward  the 
Third  was  read,  which  is  the  great  statute  about 
treasons,  and   that  does  contain  divers  species  of 
treason,  and  declares  what  shall  be  treason:  one 
treason  is  the  compassing  and  imagining  the  death 
of  the  King;  another  is  the  levying  war.     Now, 
says  he"  (i.  e.,  Freind),  "here  is  no  war  actually 
levied;  and  a  bare  conspiracy  to  levy  war  does 
not  come  within    the   law   against   treason."     To 
pause  here  a  little.     Freind's  argument  was  this : 
Whatever  my  intentions  might  be;  whatever  my 
object  of  levying  war  might  have  been;  whatever 
might  have  been  my  design  to  levy  it ;  however 
the   destruction   of    the   King   might   have   been 


TRIAL  OF  THOMAS   HARDY.  461 

effected  by  my  conspiracy,  if  it  had  gone  on  ;  and 
however  it  might  have  been  my  intention  that  it 
should,  it  is  not  treason  within  the  twenty-fifth  of 
Edward  the  Third.  To  which  Holt  replied,  a 
little  incorrectly  in  language,  but  right  in  sub- 
stance: "Now  for  that  I  must  tell  you,  if  there 
be  only  a  conspiracy  to  levy  war,  it  is  not  trea- 
son ; "  /.  < .,  it  is  not  a  substantative  treason  ;  it  is  not 
a  treason  in  the  abstract.  "But  if  the  design  and 
conspiracy  be  either  to  kill  the  King,  or  to  depose 
him,  or  imprison  him,  or  put  any  force  or  restraint 
upon  him,"  i.  e.,  personal  restraint  by  force,  "and 
the  way  of  effecting  these  purposes  is  by  levying  a 
war,  there  the  conspiracy  and  consultation,  to 
levy  war  for  that  purpose,  is  high  treason,  though 
no  war  be  levied ;  for  such  consultation  and  con- 
spiracy is  an  overt  act,  proving  the  compassing 
the  death  of  the  King."  But  what  sort  of  war  is 
it,  the  bare  conspiracy  to  levy  which  is  an  overt 
act  to  prove  a  design  against  the  King's  life,  though 
no  war  be  actually  levied  ?  Gentlemen,  Lord  Holt 
himself  illustrates  this  matter  so  clearly,  that  if  I 
had  any  thing  at  stake,  short  of  the  honor  and  life 
of  the  prisoner,  I  might  sit  down  as  soon  as  I  had 
read  it ;  for  if  one  did  not  know  it  to  be  an  extract 
from  an  ancient  trial,  one  would  say  it  was  admir- 
ably and  accurately  written  for  the  present  pur- 
pose. It  is  a  sort  of  prophetic  bird's-eye  view  of 
what  we  are  engaged  in  at  this  moment  "There 


462  SPEECH   OF   ME.    ERSKINE   ON   THE 

may  be  war  levied,"  continues  Lord  Holt  in 
Freind's  case,  "  without  any  design  upon  the  King's 
person,  which,  if  actually  levied,  is  high  treason, 
though  purposing  and  designing  such  a  levying  of 
war  is  not  so.  As  for  example:  if  persons  do 
assemble  themselves,  and  act  with  force,  in  oppo- 
sition to  some  law,  and  hope  thereby  to  get  it 
repealed;  this  is  a  levying  war,  and  treason, 
though  the  purposing  and  designing  of  it  is  not  so. 
So  when  they  endeavor,  in  great  numbers,  with 
force,  to  make  reformation  of  their  own  heads, 
without  pursuing  the  methods  of  the  law,  that  is  a 
levying  war,  but  the  purpose  and  designing  is  not 
so.  But  if  there  be,  as  I  told  you,  a  purpose  and 
design  to  destroy  the  King,  and "  ( not  or  to  depose 
him,  but  and  to  depose  him)  "  to  depose  him  from 
his  throne,  which  is  proposed  and  designed  to  be 
effected  by  war  that  is  to  be  levied ;  such  a  con- 
spiracy and  consultation  to  levy  war  for  the  bring- 
ing this  to  pass,"  i.  e.,  for  bringing  the  King's 
death  to  pass,  "is  an  overt  act  of  high  treason. 
So  that,  gentlemen,  as  to  that  objection  which  he 
makes,  in  point  of  law,  it  is  of  no  force,  if  there  be 
evidence  sufficient  to  convince  you  that  he  did 
conspire  to  levy  war  for  such  an  end."  And  he 
concludes  by  again  leaving  the  intention  expressly 
to  the  jury. 

It  is  the  end,  therefore,  for  which  the  war  is  to 
be  levied,  and  not  the  conspiracy  to  do  any  act 


TRIAL  OF  THOMAS  HARDY.        463 

which  the  law  considers  as  a  levying  of  war,  that 
constitutes  an  overt  act  of  treason  against  the 
King's  life.  The  most  rebellious  movements 
towards  a  reform  in  government,  not  directed 
against  the  King's  person,  will  not,  according  to 
Lord  Holt,  support  the  charge  before  you.  I 
might  surround  the  House  of  Commons  with  fifty 
thousand  men,  for  the  express  purpose  of  forcing 
them,  by  duress,  to  repeal  any  law  that  is  offensive 
to  me,  or  to  pass  a  bill  for  altering  elections,  with- 
out being  a  possible  object  of  this  prosecution. 
Under  the  other  branch  of  the  statute  I  might 
indeed  be  convicted  of  levying  war,  but  not  of 
compassing  the  King's  death ;  and  if  I  only  con- 
spired and  meditated  this  rising  to  repeal  laws  by 
rebellion,  I  could  be  convicted  of  nothing  but  a 
high  misdemeanor.  I  would  give  my  friends  the 
CMS  upon  a  special  verdict,  and  let  them  hang  me 
if  they  could.  How  much  more  might  I  give  it 
them  if  the  conspiracy  imputed  was  not  to  effect  a 
reform  by  violence,  but,  as  in  the  case  before  us, 
by  pamphlets  and  speeches,  which  might  produce 
universal  suffrage,  which  universal  suffrage  might 
eat  out  and  destroy  aristocracy,  which  destruction 
might  lead  to  the  fall  of  monarchy,  and,  in  the  end, 
to  the  death  of  the  King.  Gentlemen,  if  the  cause 
were  not  too  serious,  I  should  liken  it  to  the  play 
with  which  we  amuse  our  children :  This  is  the 
cow  with  a  crumpiedy  horn,  which  gored  the  dog, 


464  SPEECH   OF    MK.    EESKINE   ON    THE 

that  worried  the  cat,  that  ate  the  rat,  etc.,  ending 
in  the  house  which  Jack  built. 

I  do  therefore,  maintain,  upon  the  express  au- 
thority of  Lord  Holt,  that,  to  convict  a  prisoner, 
charged  with  this  treason,  it  is  absolutely  necessary 
that  you  should  be  satisfied  of  his  intention  against 
the  King's  life,  as  charged  in  the  indictment,  and 
that  no  design  against  the  King's  government  will 
even  be  a  legal  overt  act  to  be  left  to  a  jury  as 
the  evidence  of  such  an.  intention,  much  less  the 
substantive  and  consummate  treason,  unless  the 
conspiracy  be  directly  pointed  against  the  person 
of  the  King.  The  case  of  Lord  George  Gordon 
is  opposed  to  this  as  a  high  and  modern  decision  ; 
and  the  Attorney-General  descended  indeed  to  a 
very  humble  and  lowly  authority,  when  he  sought 
to  maintain  his  argument  by  my  own  speech,  as 
counsel  for  the  unfortunate  person.  The  passage 
of  it  alluded  to  lies  at  this  moment  before  me ;  and 
I  shall  repeat  it,  and  re-maintain  it  to-day.  But 
let  it  first  be  recollected,  that  Lord  George  Gor- 
don was  not  indicted  for  compassing  or  imagining 
the  King's  death,  under  the  first  branch  of  the 
statute,  but  for  levying  war  under  the  second.  It 
never  indeed  entered  into  the  conception  of  any 
man  living,  that  such  an  indictment  could  have 
been  maintained,  or  attempted  against  him  ;  I  ap- 
peal to  one  of  your  lordships  now  present,  for 
whose  learning  and  capacity  I  have  the  greatest 


TRIAL  OF  THOMAS   HARDY.  405 

and  highest  respect,  and  who  sat  upon  that  trial, 
that  it  was  not  insinuated  from  the  bar,  much  less 
adjudged  by  the  court,  that  the  evidence  had  any 
bearing  upon  the  first  branch  of  treason.  I  know 
that  I  may  safely  appeal  to  Mr.  Justice  Buller  for 
the  truth  of  this  assertion ;  and  nothing  surely  in 
the  passage  from  my  address  to  the  jury,  has  the 
remotest  allusion  to  assimilate  a  conspiracy  against 
the  King's  government,  collateral  to  his  person, 
with  a  treason  against  his  life.  My  words  were, 
"To  compass,  or  imagine  the  death  of  the  King; 
such  imagination,  or  purpose  of  the  mind,  visible 
only  to  its  great  Author,  being  manifested  by  some 
open  act;  an  institution  obviously  directed,  not 
only  to  the  security  of  his  natural  person,  but  to 
the  stability  of  the  government ;  the  life  of  the 
Prince  being  so  interwoven  with  the  constitution  of 
the  state,  that  an  attempt  to  destroy  the  one,  is 
justly  held  to  be  a  rebellious  conspiracy  against  the 
other." 

What  is  that  but  to  say  that  the  King's  sacred 
life  is  guarded  by  higher  sanctions  than  the  ordi- 
nary laws,  because  of  its  more  inseparable  connec- 
tion with  the  public  security,  and  that  an  attempt 
to  destrov  it  is  therefore  made  treason  against  the 

«/ 

state  ?     But  the  Attorney-General  is,  I  am  sure,  too 
correct  in  his  logic  to  say,  that  the  converse  of  tlu- 
proposition  is  therefore  maintained,  and  that  an 
attack   upon   the   King's  authority,  without  d« 
30  B 


466     SPEECH  OF  MR.  ERSKINE  ON  THE 

upon  his  person,  is  affirmed  by  the  same  expres- 
sion to  be  treason  against  his  life.  His  correct 
and  enlarged  mind  is  incapable  of  such  confusion 
of  ideas. 

But  it  is  time  to  quit  what  fell  from  me  upon 
this  occasion,  in  order  to  examine  the  judgment  of 
the  court,  and  to  clothe  myself  with  the  authority 
of  that  great  and  venerable  magistrate,  whose 
memory  will  always  be  dear  to  me,  not  only  from 
the  great  services  he  rendered  to  his  country  in 
the  administration  of  her  justice,  but  on  account 
of  the  personal  regard  and  reverence  I  had  for 
him  when  living. 

Lord  Mansfield,  in  delivering  the  law  to  the 
jury  upon  Lord  George  Gordon's  trial, — I  appeal 
to  the  trial  itself,  and  to  Mr.  Justice  Buller,  now 
present,  who  agreed  in  the  judgment, — expressly 
distinguished  between  the  safety  provided  for  the 
King's  natural  person,  by  the  first  branch  of  the 
statute,  and  the  security  of  his  executive  power 
under  the  second.  That  great  judge  never  had  an 
idea  that  the  natural  person  of  the  King,  and  the 
majesty  of  the  King,  were  the  same  thing,  nor  that 
the  treasons  against  them  were  synonymous;  he 
knew,  on  the  contrary,  for  he  knew  all  that  was  to 
be  known,  that  as  substantive  crimes  they  never 
had  been  blended.  I  will  read  his  own  words; 
"There  are  two  kinds  of  levying  war:  one  against 
the  person  of  the  King ;  to  imprison,  to  dethrone, 


TRIAL  OP  THOMAS   HARDY.  407 

or  to  kill  him;  or  to  make  him  change  measures, 
or  remove  counsellors:  the  other,  which  is  said  to 
be  levied  against  the  majesty  of  the  King,  or,  in 
other  words,  against  him  in  his  regal  capacity;  as 
when  a  multitude  rise  and  assemble  to  attain  by 
force  and  violence  any  object  of  a  general  public 
nature;  that  is  levying  war  against  the  majesty  of 
the  King;  and  most  reasonably  so  held,  because  it 
tends  to  dissolve  all  the  bonds  of  society,  to  destroy 
property,  and  to  overturn  government;  and,  by 
force  of  arms  to  restrain  the  King  from  reigning 
according  to  law."  But  then  observe,  gentlemen, 
the  war  must  be  actually  levied;  and  here  again,  I 
appeal  to  Mr.  Justice  Buller,  for  the  words  of 
Lord  Mansfield,  expressly  referring  for  what  he 
said  to  the  authority  of  Lord  Holt,  in  Sir  John 
Freind's  case,  already  cited,  "Lord  Chief  Justice 
Holt,  in  Sir  John  Freind's  case,  says:  If  persons 
do  assemble  themselves  and  act  with  force,  in  op- 
position to  some  law  which  they  think  inconven- 
ient, and  hoj)e  thereby  to  get  it  repealed,  this  is  a 
levying  war  and  treason.  In  the  present  case  it 
don't  rest  upon  an  implication  that  they  hoped  by 
opposition  to  a  law  to  get  it  repealed;  but  the 
prosecution  proceeds  upon  the  direct  ground,  that 
the  object  was,  by  force  and  violence,  to  compel 
the  legislature  to  repeal  a  law;  and  therefore, 
without  any  doubt,  I  tell  you  the  joint  opinion  of 
us  all,  that,  if  this  multitude  assembled  with  intent, 


4G8  SPEECH   OF   ME.    ERSKINE   ON   THE 

by  acts  of  force  and  violence,  to  compel  the  legis- 
lature to  repeal  a  law,  it  is  high  treason."  Let 
these  words  of  Lord  Mansfield  be  taken  down,  and 
then  show  me  the  man,  let  his  rank  and  capacity 
be  what  they  may,  who  can  remove  me  from  the 
foundation  on  which  I  stand,  when  I  maintain  that 
a  conspiracy  to  levy  war  for  the  object  of  reforma- 
tion, is  not  only  not  the  high  treason  charged  by 
this  indictment,  when  not  directly  pointed  against 
the  King's  person,  but  that  even  the  actual  levying  it 
would  not  amount  to  the  constitution  of  the  crime. 
But  this  is  the  least  material  part  of  Lord 
Mansfield's  judgment,  as  applicable  to  the  present 
question ;  for  he  expressly  considers  the  intention 
of  the  prisoner,  whatever  be  the  act  of  treason 
alleged  against  him,  to  be  all  in  all.  So  far  from 
holding  the  probable  or  even  inevitable  conse- 
quences of  the  thing  done  as  constituting  the  quality 
of  the  act,  he  pronounces  them  to  be  nothing  as 
separated  from  the  criminal  design  to  produce 
them.  Lord  George  Gordon  assembled  an  im- 
mense multitude  around  the  House  of  Commons,  a 
system  so  opposite  to  that  of  the  persons  accused 
before  this  commission,  that  it  appears  from  the 
evidence  they  would  not  even  allow  a  man  to 
come  amongst  them,  because  he  had  been  Lord 
George's  attorney.  The  Lords  and  Commons  were 
absolutely  blockaded  in  the  chambers  of  Parlia- 
ment; and  if  control  was  the  intention  of  the 


TRIAL  OF  THOMAS  HABDY.        4G9 

prisoner,  it  must  be  wholly  immaterial  what  were 
the  deliberations  that  were  to  be  controlled ; 
whether  it  .was  the  continuance  of  Roman  Catholics 
under  penal  laws,  the  rej>eal  of  the  septennial  act, 
or  a  total  change  of  the  structure  of  the  House  of 
Commons,  that  was  the  object  of  violence;  the 
attack  upon  the  legislature  of  the  country  would 
have  been  the  same.  That  the  multitude  were 
actually  assembled  round  the  Houses,  and  brought 
there  by  the  prisoner,  it  was  impossible  for  me,  as 
his  counsel,  even  to  think  of  denying,  nor  that  their 
tumultuous  proceedings  were  not  in  effect  produc- 
tive of  great  intimidation,  and  even  danger,  to  the 
Lords  and  Commons,  in  the  exercise  of  their  author- 
ity; neither  did  I  venture  to  question  the  law, 
that  the  assembling  the  multitude  for  that  purpose, 
was  levying  war  within  the  statute.  Upon  these 
facts  therefore,  applied  to  the  doctrines  we  have 
heard  upon  this  trial,  there  would  have  been 
nothing  in  Lord  George  Gordon's  case  to  try;  he 
must  have  been  instantly,  without  controversy, 
convicted.  But  Lord  Mansfield  did  not  say  to  the 
jury,  according  to  the  doctrines  that  have  been 
broached  here,  that  if  they  found  the  multitude 
assembled  by  the  prisoner,  were  in  fact  palpably 
intimidating  and  controlling  the  Parliament  in  the 
exercise  of  their  functions,  he  was  guilty  of  high 
treason,  whatever  his  intentions  might  have  been. 
He  did  not  tell  them  that  the  inevitable  conse- 


470  SPEECH    OF    ME.    EKSKINE   ON    THE 

quence  of  assembling  a  hundred  thousand  people 
round  the  Legislature,  being  a  control  on  their 
proceedings,  was  therefore  a  levying  war;  though 
collected  from  folly  and  rashness,  without  the  in- 
tention of  violence  or  control.  If  this  had  been 
the  doctrine  of  Lord  Mansfield,  there  would,  as  I 
said  before,  have  been  nothing  to  try ;  for  I  admit- 
ted in  terms,  that  his  conduct  was  the  extremity 
of  rashness,  and  totally  inconsistent  with  his  rank 
in  the  country,  and  his  station  as  a  member  of  the 
House  of  Commons.  But  the  venerable  magistrate 
never  for  a  moment  lost  sight  of  the  grand  ruling 
principle  of  criminal  justice,  that  crimes  can  have 
no  seat  but  in  the  mind;  and  upon  the  prisoner's 
intention,  and  upon  his  intention  alone,  he  ex- 
pressly left  the  whole  matter  to  the  jury,  with  the 
following  directions,  which  I  shall  read  verbatim 
from  the  trial:  "Having  premised  these  several 
propositions  and  principles,  the  subject  matter  for 
your  consideration  naturally  resolves  itself  into 
two  points: 

"First,  whether  this  multitude  did  assemble  and 
commit  acts  of  violence,  with  intent  to  terrify  and 
compel  the  legislature  to  repeal  the  act  called  Sir 
George  Saville's.  If  upon  this  point  your  opinion 
should  be  in  the  negative,  that  makes  an  end  of  the 
whole,  and  the  prisoner  ought  to  be  acquitted;  but 
if  your  opinion  should  be,  that  the  intent  of  this 


TRIAL  OF  THOMAS   HARDY.  471 

multitude,  and  the  violence  they  committed,  was 
to  force  a  repeal,  there  arises  a  second  point : 

"  Whether  the  prisoner  at  the  bar  incited,  encour- 
aged, promoted,  or  assisted  in  raising  this  insur- 
rection, and  the  terror  they  carried  with  them,  with 
the  intent  of  forcing  a  repeal  of  this  law. 

"  Upon  these  two  points,  which  you  will  call 
your  attention  to,  depends  the  fate  of  this  trial; 
for,  if  either  the  multitude  had  no  such  intent,  or, 
supposing  they  had,  if  the  prisoner  was  no  cause, 
did  not  excite,  and  took  no  part  in  conducting, 
counselling,  or  fomenting  the  insurrection,  the 
prisoner  ought  to  he  acquitted ;  and  there  is  no 
pretence  that  he  personally  concurred  in  any  act  of 
violence." 

I  therefore  consider  the  case  of  Lord  George 
Gordon  as  a  direct  authority  in  my  favor. 

To  show  that  a  conspiracy  to  depose  the  King, 
independently  of  ulterior  intention  against  his  life, 
is  high  treason  within  the  statute,  the  Attorney- 
General  next  supposes  that  traitors  had  conspired 
to  depose  King  William,  but  still  to  preserve  him 
as  Stadtholder  in  Holland,  and  asks  whether 
that  conspiracy  would  not  be  a  compassing  his 
death.  To  that  question  I  answer,  that  it  would 
not  have  been  a  compassing  of  the  death  of  King 
William,  provided  the  conspirators  could  have  con- 
vinced the  jury  that  their  firm  and  bonajidt  inten- 
tion was  to  proceed  no  further,  and  that,  undi-r 


472     SPEECH  OF  ME.  EESKINE  ON  THE 

that  belief  and  impression,  the  jury,  as  they  law- 
fully might,  have  negatived  by  their  finding  the 
fact  of  the  intention  against  the  King's  natural 
existence.  I  have  no  doubt  at  all,  that,  upon  such 
a  finding,  no  judgment  of  treason  could  be  pro- 
nounced ;  but  the  difficulty  would  be,  to  meet  with 
a  jury,  who,  upon  the  bare  evidence  of  such  a  con- 
spiracy, would  find  such  a  verdict.  There  might 
be  possible  circumstances  to  justify  such  a  negative 
of  the  intention,  but  they  must  come  from  the  pri- 
soner. In  such  a  case  the  Crown  would  rest  upon 
the  conspiracy  to  depose,  which  would  be  prima 
facie  and  cogent  evidence  of  the  compassing,  and 
leave  the  hard  task  of  rebutting  it,  on  the  defend- 
ants. I  say  the  hard  task,  because  the  case  put  is 
of  a  direct  rebellious  force,  acting  against  the 
King;  not  only  abrogating  his  authority,  but  im- 
prisoning and  expelling  his  person  from  the  king- 
dom. I  am  not  seeking  to  abuse  the  reasons  and 
consciences  of  juries  in  the  examination  of  facts, 
but  am  only  resisting  the  confounding  them  with 
arbitrary  propositions  of  law. 

Gentlemen,  I  hope  I  have  now  a  right  to  con- 
sider that  the  existence  of  the  high  treason  charged 
against  the  unfortunate  man  before  you,  is  a  mat- 
ter of  fact  for  your  consideration  upon  the  evi- 
dence. To  establish  this  point,  has  been  the  scope 
of  all  that  you  have  been  listening  to,  with  so 
much  indulgence  and  patience.  It  was  my  in  ten- 


TRIAL  OF  THOMAS   HARDY.  473 

tion  to  have  further  supported  myself,  by  a  great 
many  authorities,  which  I  have  been  laboriously 
extracting  from  the  different  books  of  the  law; 
but  I  find  I  must  pause  here,  lest  I  consume  my 
strength  in  this  preliminary  part  of  the  case,  and 
leave  the  rest  defective. 

Gentlemen,  the  persons  named  in  the  indict- 
ment are  charged  with  a  conspiracy  to  subvert 
the  rule,  order,  and  government  of  this  country ; 
and  it  is  material  that  you  should  observe  most 
particularly  the  means  by  which  it  alleges  this 
purpose  was  to  be  accomplished.  The  charge  is 
not  of  a  conspircy  to  hold  the  convention  in  Scot- 
land, which  was  actually  held  there ;  nor  of  the 
part  they  took  in  its  actual  proceedings;  but 
the  overt  act,  to  which  all  the  others  are  subsidiary 
and  subordinate,  is  a  supposed  conspiracy  to  hold 
a  convention  in  England,  which  never,  in  fact,  was 
held ;  and  consequently  all  the  vast  load  of  mat- 
ter which  it  has  been  decided  you  should  hear,  that 
does  not  immediately  connect  itself  with  the  charge 
in  question,  is  only  laid  before  you,  as  the  court 
has  repeatedly  expressed  it,  to  prove  that  in  point 
of  fact  such  proceedings  were  had,  the  quality  of 
which  is  for  your  judgment ;  and  as  far,  and  as  far 
only,  as  they  can  be  connected  with  the  prisoner, 
and  the  act  which  he  stands  charged  with,  to  be 
left  to  you,  as  evidence  of  the  intention  with  which 


474  SPEECH   OF   ME.    ERSKINE   ON   THE 

the  holding  of  the  second  convention  was  pro- 
jected. 

This  intention  is  therefore  the  whole  cause,  for 
the  charge  is  not  the  agreement  to  hold  a  conven- 
tion, which  it  is  notorious,  self-evident,  and  even 
admitted  that  they  intended  to  hold;  but  the 
agreement  to  hold  it  for  the  purpose  alleged, 
of  assuming  all  the  authority  of  the  state  and  in 
fulfillment  of  the  main  intention  against  the  life  of 
the  King.  Unless,  therefore,  you  can  collect  this 
double  intention  from  the  evidence  before  you,  the 
indictment  is  not  maintained. 

Gentlemen,  the  charge  being  of  a  conspiracy, 
which,  if  made  out  in  point  of  fact,  involved 
beyond  all  controversy,  and  within  the  certain 
knowledge  of  the  conspirators,  the  lives  of  every 
soul  that  was  engaged  in  it,  the  first  observation 
which  I  shall  make  to  you,  because  in  reason  it 
ought  to  precede  all  others,  is,  that  every  act  done 
by  the  prisoners,  and  every  sentence  written  by 
them,  in  the  remotest  degree  connected  with  the 
charge,  or  offered  in  evidence  to  support  it,  were 
done  and  written  in  the  public  face  of  the  world ; 
the  transactions  which  constitute  the  whole  body 
of  the  proof,  were  not  those  of  a  day,  but  in  regular 
series  of  two  years  together;  they  were  not  the 
peculiar  transaction  of  the  prisoners,  but  of  im- 
mense bodies  of  the  King's  subjects,  in  various 
parts  of  the  kingdom,  assembled  without  the 


TRIAL  OF  THOMAS   HARDY.  475 

smallest  reserve,  and  giving  to  the  public,  through 
the  channel  of  the  daily  newspapers,  a  minute  and 
regular  journal  of  their  whole  proceedings.  Not  a 
syllable  have  we  heard  read,  in  the  week's  impris- 
onment we  have  suffered,  that  we  had  not  all  of 
us  read  for  months  and  months,  before  the  prose- 
cution  was  heard  of;  and  which,  if  we  are  not 
sufficiently  satiated,  we  may  read  again  upon  the 
file  of  every  coffee-house  in  the  kingdom.  It  is 
admitted  distinctly  by  the  Crown,  that  a  reform  in 
the  House  of  Commons  is  the  ostensible  purpose  of 
all  the  proceedings  laid  before  you ;  and  that  the 
attainment  of  that  object  only,  is  the  grammatical 
sense  of  the  great  body  of  the  written  evidence. 
It  rests,  therefore,  with  the  Crown  to  show,  by 
legal  proof,  that  this  ostensible  purpose,  and  the 
whole  mass  of  correspondence  upon  the  table,  was 
only  a  cloak  to  conceal  a  hidden  machination,  to 
subvert  by  force  the  entire  authorities  of  the  king- 
dom, and  to  assume  them  to  themselves.  Whether 
a  reform  of  Parliament  be  a  wise  or  an  unwise 
expedient;  whether,  if  it  were  accomplished,  it 
would  ultimately  be  attended  with  benefits,  or 
dangers,  to  the  country,  I  will  not  undertake  to 
investigate,  and  for  this  plain  reason  ;  because  it  is 
wholly  foreign  to  the  subject  before  us.  But  when 
we  are  trying  the  integrity  of  men's  intentions, 
and  are  examining  whether  their  complaints  of 
defects  in  the  representation  of  the  House  of  Com- 


476  SPEECH   OF   MR.    EESKINE   ON   THE 

mons  be  lonafide,  or  only  a  mere  stalking-horse 
for  treason  and  rebellion,  it  becomes  a  most  essen- 
tial inquiry,  whether  they  be  the  first  who  have 
uttered  these  complaints ;  whether  they  have  taken 
up  notions  for  the  first  time,  which  never  occurred 
to  others;  and  whether,  in  seeking  to  interfere 
practically  in  an  alteration  of  the  constitution, 
they  have  manifested,  by  the  novelty  of  their  con- 
duct, a  spirit  inconsistent  with  affection  for  the 
government,  and  subversive  of  its  authority. 

Gentlemen,  I  confess  for  one,  for  I  think  the 
safest  way  of  defending  a  person  for  his  life  before 
an  enlightened  tribunal  is  to  defend  him  ingenu- 
ously, I  confess  for  one,  that  if  the  defects  in  the 
constitution  of  Parliament,  which  are  the  subject  of 
the  writings,  and  the  foundation  of  all  the  proceed- 
ings before  you,  had  never  occurred  to  other  persons 
at  other  times,  or,  if  not  new,  they  had  only  existed 
in  the  history  of  former  conspiracies,  I  should  be 
afraid  you  would  suspect,  at  least,  that  the  authors 
of  them  were  plotters  of  mischief.  In  such  a  case 
I  should  naturally  expect  that  you  would  ask 
yourselves  this  question  :  Why  should  it  occur  to 
the  prisoner  at  the  bar,  and  to  a  few  others  in  the 
year  1794,  immediately  after  an  important  revolu- 
tion in  another  country,  to  find  fault,  on  a  sudden, 
with  a  constitution  which  had  endured  for  ages, 
without  the  imputation  of  defect,  and  which  no 
good  subject  had  ever  thought  of  touching  with 


TBIAL  OF  THOMAS  HARDY.        477 

the  busy  hand  of  reformation  ?  I  candidly  admit 
that  such  a  question  would  occur  to  the  mind  of 
every  reasonable  man,  and  could  admit  no  favor- 
able answer.  But  surely  this  admission  entitles 
me,  on  the  other  hand,  to  the  concession,  that  if, 
in  compiling  their  writings,  and  examining  their 
conduct  with  the  writings  and  conduct  of  the  bat 
and  most  unsuspected  persons  in  the  best  and 
most  unsuspected  times,  we  find  them  treading  in 
the  paths  which  have  distinguished  their  highest 
superiors ;  if  we  find  them  only  exposing  the  same 
defects,  and  pursuing  the  same  or  similar  courses 
for  their  removal,  it  would  be  the  height  of 
wickedness  and  injustice  to  torture  expressions, 
and  pervert  conduct,  into  treason  and  rebellion, 
which  had  recently  lifted  up  others  to  the  love  of 
the  nation,  to  the  confidence  of  the  Sovereign,  and 
to  all  the  honors  of  the  state.  The  natural  just- 
ness of  this  reasoning  is  so  obvious,  that  we  have 
only  to  examine  the  fact ;  and,  considering  under 
what  auspices  the  prisoners  are  brought  before 
you,  it  may  be  fit  that  I  should  set  out  with 
reminding  you,  that  the  great  Earl  of  Chatham 
began  and  established  the  fame  and  glory  of  his 
life  upon  the  very  cause  which  my  unfortunate 
clients  were  engaged  in,  and  that  he  left  it  as  an 
inheritance  to  the  present  minister  of  the  Crown, 
as  the  foundation  of  his  fame  and  glory  after  him ; 
and  his  fame  and  glory  were  accordingly  raised 


478     SPEECH  OF  MR.  ERSKINE  ON  THE 

upon  it;  and  if  the  Crown's  evidence  had  heen 
carried  as  far  back  as  it  might  have  been — for  the 
institution  of  only  one  of  the  two  London  societies 
is  before  us — you  would  have  found  that  the  Con- 
stitutional Society  owed  its  earliest  credit  with  the 
country,  if  not  its  very  birth,  to  the  labor  of  the 
present  minister,  and  its  professed  principles  to 
his  grace  the  Duke  of  Richmond,  high  also  in  his 
Majesty's  present  councils,  whose  plan  of  reform 
has  been  clearly  established  by  the  whole  body  of 
the  written  evidence,  and  by  every  witness  exam- 
ined for  the  Crown,  to  have  been  the  type  and 
model  of  all  the  societies  in  the  supposed  conspir- 
acy, and  uniformly  acted  upon  in  form  and  in 
substance  by  the  prisoner  before  you,  up  to  the 
very  period  of  his  confinement. 

Gentlemen,  the  Duke  of  Richmond's  plan  was 
universal  suffrage  and  annual  Parliaments;  and 
urged  too  with  boldness,  which,  when  the  com- 
parison comes  to  be  made,  will  leave  in  the  back- 
ground the  strongest  figures  in  the  writings  on  the 
table.  I  do  not  say  this  sarcastically ;  I  mean  to 
speak  with  the  greatest  respect  of  his  grace,  both 
with  regard  to  the  wisdom  and  integrity  of  his 
conduct;  for  although  I  have  always  thought  in 
politics  with  the  illustrious  person  whose  letter 
was  read  to  you ;  although  I  think  with  Mr.  Fox, 
that  annual  Parliaments  and  universal  suffrage 
would  be  nothing  like  an  improvement  in  the  con- 


TRIAL  OF  THOMAS  HARDY.        479 

stitution ;  yet  I  confess  that  I  find  it  easier  to  say 
so  than  to  answer  the  Duke  of  Richmond's  argu- 
ments on  the  subject ;  and  I  must  say  besides, 
speaking  of  his  grace  from  a  long  personal  know- 
ledge, which  l>egun  when  I  was  counsel  for  his 
relation,  Lord  Keppel,  that,  independently  of  his 
illustrious  rank,  which  secures  him  against  the  im- 
putation of  trifling  with  its  existence,  he  is  a  per- 
son of  enlarged  understanding,  of  extensive  read- 
ing, and  of  much  reflection ;  and  that  his  book 
cannot  therefore  be  considered  as  the  effusion  of 
rashness  and  folly,  but  as  the  well-weighed,  though 
perhaps  erroneous,  conclusions  drawn  from  the 
actual  condition  of  our  affairs,  viz.,  that  without  a 
speedy  and  essential  reform  in  Parliament — and 
there  my  opinion  goes  along  with  him — the  very 
being  of  the  country,  as  a  great  nation,  would  be 
lost.  This  plan  of  the  Duke  of  Richmond,  was 
the  grand  main-spring  of  every  proceeding  we 
have  to  deal  with  ;  you  have  had  a  great  number 
of  loose  conversations  reported  from  societies,  on 
which  no  reliance  can  be  had;  sometimes  they 
have  been  garbled  by  spies,  sometimes  misrepre- 
sented by  ignorance ;  and  even  if  correct,  have 
frequently  been  the  extravagances  of  unknown 
individuals,  not  even  uttered  in  the  presence  of 
the  prisoner,  and  totally  unconnected  with  any  de- 
sign ;  for  whenever  their  proceedings  are  appealed 
to,  and  their  real  object  examined,  by  living  mem- 


480  SPEECH   OF   ME.    EESKINE   ON   THE 

bers  of  them,  brought  before  you  by  the  Crown,  to 
testify  them  under  the  most  solemn  obligations  of 
truth,  they  appear  to  have  been  following,  in  form 
and  in  substance,  the  plans  adopted  within  our 
memories,  not  only  by  the  Duke  of  Richmond,  but 
by  hundreds  of  the  most  eminent  men  in  the  king- 
dom. The  Duke  of  Richmond  formally  published 
his  plan  of  reform  in  the  year  1780,  in  a  letter  to 
Lieutenant-Colonel  Sharman,  who  was  at  that  time 
practically  employed  upon  the  same  object  in  Ire- 
land ;  and  this  is  a  most  material  part  of  the  case  ; 
because  you  are  desired  to  believe  that  the  terms 
convention,  and  delegates,  and  the  holding  the 
one,  and  sending  the  other,  were  all  collected  from 
what  had  recently  happened  in  France,  and  were 
meant  as  the  formal  introduction  of  her  republican 
constitution  ;  but  they  who  desire  you  to  believe 
all  this,  do  not  believe  it  themselves ;  because  they 
know  certainly,  and  it  has  indeed  already  been 
proved  by  their  own  witnesses,  that  conventions 
of  reformers  were  held  in  Ireland,  and  delegates 
regularly  sent  to  them,  whilst  France  was  under 
the  dominion  of  her  ancient  government.  They 
knew  full  well  that  Colonel  Sharman,  to  whom  the 
Duke's  letter  was  addressed,  was  at  that  very 
moment  supporting  a  convention  in  Ireland,  at  the 
head  of  ten  thousand  men  in  arms,  for  the  defence 
of  their  country,  without  any  commission  from  the 
King,  any  more  than  poor  Franklow  had,  who  is 


TRIAL  OF  THOMAS   HARDY.  481 

now  in  Newgate  for  regimenting  sixty.  These 
volunteers  asserted  and  saved  the  liberties  of  Ire- 
laud  ;  and  the  King  would,  at  this  day,  have  had 
no  more  subjects  in  Ireland  than  he  now  has  in 
America,  if  they  had  been  treated  as  traitors  to 
the  government.  It  was  never  imputed  to  Colonel 
Sharman  and  the  volunteers,  that  they  were  in 
rebellion;  yet  they  had  arms  in  their  hands,  which 
the  prisoners  never  dreamed  of  having;  whilst  a 
grand  general  convention  was  actually  sitting 
under  their  auspices  at  the  Royal  Exchange  of 
Dublin,  attended  by  regular  delegates  from  all  the 
counties  in  Ireland.  And  who  were  these  dele- 
gates? I  will  presently  tear  off  their  names  from 
this  paper  and  hand  it  to  you.  They  were  the 
greatest,  best,  and  proudest  names  in  Ireland ; 
men  who  had  the  wisdom  to  reflect,  before  it  WHS 
too  late  for  reflection,  that  greatness  is  not  to  be 
supported  by  tilting  at  inferiors,  till,  by  the  separa- 
tion of  the  higher  from  the  lower  orders  of  man- 
kind, every  distinction  is  swept  away  in  the  tem- 
pest of  revolution;  but  in  the  happy  harmoniza- 
tion of  the  whole  community ;  by  conferring  upon 
the  people  their  rights;  sure  of  receiving  the  au- 
spicious return  of  affection,  and  of  insuring  the 
stability  of  the  government,  which  is  er« 
upon  that  just  and  natural  basis.  Gentlemen,  tin  y 
who  put  this  tortured  construction  upon  con  voli- 
tions and  delegates,  know  also  that  repeated  imrt- 
31  B 


482  SPEECH   OF   ME.    EESKINE   ON   THE 

ings  of  reforming  societies,  both  in  England  and 
Scotland,  had  assumed  about  the  same  time  the 
style  of  conventions,  and  had  been  attended  by 
regular  delegates  long  before  the  phase  had,  or 
could  have  had,  any  existence  in  France  ;  and  that 
upon  the  very  model  of  these  former  associations, 
a  formal  convention  was  actually  sitting  in  Edin- 
burgh, with  the  Lord  Chief  Baron  of  Scotland  in 
the  chair,  for  promoting  a  reform  in  Parliament,  at 
the  very  moment  the  Scotch  convention,  following 
it$  example,  assumed  that  title. 

To  return  to  this  letter  of  the  Duke  of  Rich- 
mond: It  was  written  to  Colonel  Sharman,  in 
answer  to  a  letter  to  his  grace,  desiring  to  know 
his  plan  of  reform,  which  he  accordingly  commu- 
nicated by  the  letter  which  is  in  evidence;  and 
which  plan  was  neither  more  nor  less  than  that 
adopted  by  the  prisoners,  ot  surrounding  Parlia- 
ment, unwilling  to  reform  its  own  corruptions,  not 
by  armed  men,  or  by  importunate  multitudes,  but 
by  the  still  and  universal  voice  of  a  whole  people 
claiming  their  known  and  unalienable  rights.  This 
is  so  precisely  the  plan  of  the  Duke  of  Richmond, 
that  I  have  almost  borrowed  his  expressions.  His 
grace  says  :  "  The  lesser  reform  has  been  attempted 
with  every  possible  advantage  in  its  favor;  not 
only  from  the  zealous  support  of  the  advocates  for 
a  more  effectual  one,  but  from  the  assistance  of 
men  of  great  weight,  both  in  and  out  of  power. 


TRIAL  OF   THOMAS   HARDY.  488 

But  with  all  these  temperaments  and  helps  it  has 
failed.  Not  one  proselyte  has  been  gained  from 
corruption,  nor  has  the  least  ray  of  hope  been  held 
out  from  any  quarter,  that  the  House  of  Commons 
was  Inclined  to  adopt  any  other  mode  of  reform. 
The  weight  of  corruption  has  crushed  this  more 
gentle,  as  it  would  have  defeated  any  more  effica- 
cious, plan  in  the  same  circumstances.  From  that 
quarter,  therefore,  I  have  nothing  to  hope.  It  is 
from  the  people  at  large  that  I  expect  any  good; 
and  I  am  convinced,  that  the  only  way  to  make 
them  feel  that  they  are  really  concerned  in  the 
business,  is  to  contend  for  their  ftill,  clear,  and 
indisputable  rights  of  universal  representation.*' 
Now  how  does  this  doctrine  apply  to  the  defence 
of  the  prisoner?  I  maintain  that  it  has  the  most 
decisive  application;  because  this  book  has  been 
put  into  the  hands  of  the  Crown  witnesses,  who 
have  one  and  all  of  them  recognized  it,  and  declared 
it  to  have  been,  bona  fide,  the  plan  which  they 
pursued. 

But  are  the  Crown's  witnesses  worthy  of  credit? 

w 

If  they  are  not,  let  us  return  home,  since  there  is 
no  evidence  at  all,  and  the  cause  is  over.  All  the 
guilt,  if  any  there  be,  proceeds  from  their  testi- 
mony; if  they  are  not  to  be  believed,  they  h:i\v 
proved  nothing;  since  the  Crown  cannot  force 
upon  you  that  part  of  the  evidence  which  suits  it- 
purpose,  and  ask  you  to  reject  the  other  which 


484  SPEECH   OF   ME.    EKSKINE   ON   THE 

does  not.  The  witnesses  are  either  entirely  credi- 
ble, or  undeserving  of  all  credit,  and  I  have  no 
interest  in  the  alternative.  This  is  precisely  the 
state  of  the  cause.  For,  with  regard  to  all  the 
evidence  that  is  written,  let  it  never  be  forgotten, 
that  it  is  not  upon  ine  to  defend  my  clients  against 
it,  but  for  the  Crown  to  extract  from  it  the  mate- 
rials of  accusation.  They  do  not  contend  that  the 
treason  is  upon  the  surface  of  it,  but  in  the  latent 
intention ;  which  intention  must,  therefore,  be  sup- 
ported by  extrinsic  proof;  but  which  is,  neverthe- 
less, directly  negatived  and  beat  down  by  every 
witness  they  have  called,  leaving  them  nothing  but 
commentaries  and  criticisms  against  both  fact  and 
language,  to  which,  for  the  present,  I  shall  content 
myself  with  replying  in  the  authoritative  language 
of  the  court,  in  the  earliest  stage  of  their  pro- 
ceedings : 

"  If  there  be  ground  to  consider  the  professed 
purpose  of  any  of  these  associations,  a  reform  in 
Parliament,  as  mere  color,  and  as  a  pretext  held 
out  in  order  to  cover  deeper  designs — designs 
against  the  whole  constitution  and  government  of 
the  country ;  the  case  of  those  embarked  in  such 
designs  is  that  which  I  have  already  considered. 
Whether  this  be  so  or  not,  is  mere,  matter  of  fact ; 
as  to  which  I  shall  only  remind  you,  that  an 
inquiry  into  a  charge  of  this  nature,  which  under- 
takes to  make  out  that  the  ostensible  purpose  is  a 


TRIAL  OF  THOMAS   HARDY.  K~> 

mere  veil,  under  which  is  concealed  a  traitorous 
conspiracy,  requires  cool  and  deliberate  examina- 
tion, and  the  most  attentive  consideration;  and 
that  the  result  should  be  perfectly  clear  and  satis- 
factory. In  the  affairs  of  common  life,  no  man  is 
justified  in  imputing  to  another  a  meaning  contrary 
to  what  he  himself  expresses,  but  upon  the  fullest 
evidence."  To  this,  though  it  requires  nothing 
to  support  it,  either  in  reason  or  authority,  I  desire 
to  add  the  direction  of  Lord  Chief  Justice  Holt  to 
the  jury,  on  the  trial  of  Sir  John  Perkyns: 

"Gentlemen,  it  is  not  fit  that  there  should  be 
any  strained  or  forced  construction  put  upon  a 
man's  actions  when  he  is  tried  for  his  life.  You 
ought  to  have  a  full  and  satisfactory  evidence  that 
he  is  guilty,  before  you  pronounce  him  so." 

In  this  assimilation  of  the  writings  of  the 
societies  to  the  writings  of  the  Duke  of 
Richmond  and  others,  I  do  not  forget  that  it 
has  been  truly  said  by  the  Lord  Chief  Justice,  in 
the  course  of  this  very  cause,  that  ten  or  twenty 
men's  committing  crimes,  furnishes  no  defence  for 
other  men  in  committing  them.  Certainly  it  does 
not;  and  I  fly  to  no  such  sanctuary;  but  in  trying 
the  prisoner's  intentions,  and  the  intentions  of 
those  with  whom  he  associated  and  acted,  if  I  can 
show  them  to  be  only  insisting  upon  the  s.-mn 
principles  that  have  distinguished  th<»m.»st  eminent 
men  for  wisdom  and  virtue  in  the  country,  it  will 


SPEECH   OF   ME.    ERSKESTE   ON   THE 

not  be  very  easy  to  declaim  or  argue  them  into 
the  pains  of  death,  whilst  our  bosoms  are  glowing 
with  admiration  at  the  works  of  those  very  persons 
who  would  condemn  them. 

Gentlemen,  it  has  been  too  much  the  fashion  of 
late  to  overlook  the  genuine  source  of  all  law  and 
authority,  but  more  especially  totally  to  forget  the 
character  of  the  British  House  of  Commons  as  a 
representative  of  the  people ;  whether  this  has 
arisen  from  that  assembly's  having  itself  forgotten 
it,  would  be  indecent  for  me  to  inquire  into  or  to 
insinuate;  but  I  shall  preface  the  authorities 
which  I  mean  to  collect  in  support  of  the  prisoner, 
with  the  opinion  on  that  subject  of  a  truly  cele- 
brated writer,  whom  I  wish  to  speak  of  with  great 
respect. ;  I  should,  indeed,  be  ashamed,  particularly 
at  this  moment,  to  name  him  invidiously,  whilst 
he  is  bending  beneath  the  pressure  of  a  domestic 
misfortune,  which  no  man  out  of  his  own  family 
laments  more  sincerely  than  I  do.*  No  difference 
of  opinion  can  ever  make  me  forget  to  acknowledge 
the  sublimity  of  his  genius,  the  vast  reach  of  his 
understanding,  and  his  universal  acquaintance  with 
the  histories  and  constitutions  of  nations;  I  also 
disavow  the  introduction  of  the  writings  with  the 
view  of  involving  the  author  in  any  apparent  in- 
consistencies, which  would  tend,  indeed,  to  defeat 
rather  than  to  advance  my  purpose.  I  stand  here 

*Mr.  Burke' 9  son  was  then  dying. 


TRIAL   OF   THOMAS   HARDY.  487 

to-day,  to  claim  at  your  hands,  a  fair  and  charitable 
interpretation  of  human  conduct,  and  I  shall  not 
set  out  with  giving  an  example  of  uncharitable- 
ness.  A  man  may  have  reason  to  change  his  opin- 
ions, or  perhaps  the  defect  may  be  in  myself,  who 
collect  that  they  are  changed  ;  I  leave  it  to  God  to 
judge  of  the  heart;  my  wish  is,  that  Christian 
charity  may  prevail ;  that  the  public  harmony 
which  has  been  lost  may  be  restored;  that  all 
England  may  re-unite  in  the  bonds  of  love  and 
affection ;  and  that,  when  the  court  is  broken  up 
by  the  acquittal  of  the  prisoners,  all  heart-burnings 
and  animosities  may  cease;  that,  whilst  yet  we 
work  in  the  light,  we  may  try  how  we  can  save 
our  country  by  a  common  effort ;  and  that,  instead 
of  shamelessly  setting  one  half  of  society  against 
the  other  by  the  force  of  armed  associations,  and 
the  terrors  of  courts  of  justice,  our  spirits  and  our 
strength  may  be  combined  in  the  glorious  cause  of 
our  country.  By  this,  I  do  not  mean  in  the  cause 
of  the  present  war,  which  I  protect  against  as  un- 
just, calamitous,  and  destructive ;  but  this  is  not 
the  place  for  such  a  subject ;  I  only  advert  to  it  to 
prevent  mistake  or  misrepresentation. 

The  history  and  character  of  the  English  House 
of  Commons  was  formerly  thus  described  by  Mr. 
Burke :  "  The  House  of  Commons  was  supposed 
originally  to  be  no  part  of  the  standing  govern- 
ment of  this  country,  but  was  considered  as  a  con- 


488     SPEECH  OF  ME.  EESKINE  ON  THE 

trol  issuing  immediately  from  the  people,  and 
speedily  to  be  resolved  into  the  mass  from  whence 
it  arose;  in  this  respect  it  was  in  the  higher  part 
of  government  what  juries  are  in  the  lower.  The 
capacity  of  a  magistrate  being  transitory,  and  that 
of  a  citizen  permanent,  the  latter  capacity,  it  was 
hoped,  would  of  course  preponderate  in  all  discus- 
sions, not  only  between  the  people  and  the  standing 
authority  of  the  Crown,  but  between  the  people 
and  the  fleeting  authority  of  the  House  of  Com- 
mons itself.  It  was  hoped,  that,  being  of  a  mid- 
dle nature,  between  subject  and  government,  they 
would  feel  with  a  more  tender  and  nearer  interest, 
everything  that  concerned  the  people,  than  the 
other  remoter  and  more  permanent  parts  of  legis-  , 
lature. 

"  Whatever  alterations  time  and  the  necessary 
accommodation  of  business  may  have  introduced, 
this  character  can  never  be  sustained,  unless  the 
House  of  Commons  shall  be  made  to  bear  some 
stamp  of  the  actual  disposition  of  the  people  at 
large;  it  would,  among  public  misfortunes,  be  an 
evil  more  natural  and  tolerable,  that  the  House  of 
Commons  should  be  infected  with  every  epidemical 
frenzy  of  the  people,  as  this  would  indicate  some 
consanguinity,  some  sympathy  of  nature  with  their 
constituents,  than  that  they  should,  in  all  cases,  be 
wholly  untouched  by  the  opinions  and  feelings  of 
the  people  out  of  doors.  By  this  want  of  sym- 


TRIAL  OF  THOMAS   HARDY. 

pathy,  they  would  cease  to  be  a  House  of  Commons. 

"The  virtue,  spirit,  and  essence  of  a  House  of 
Commons,  consists  in  its  being  the  express  image 
of  the  feelings  of  the  nation.  It  was  not  insti- 
tuted to  be  a  control  upon  the  people,  as  of  late  it 
has  been  taught,  by  a  doctrine  of  the  most  per- 
nicious tendency,  but  as  a  control  for  the  people." 

He  then  goes  on  to  say,  that  to  give  a  technical 
shape,  a  color,  dress,  and  duration  to  popular  opin- 
ion, is  the  true  office  of  the  House  of  Commons. 
Mr.  Burke  is  unquestionably  correct ;  the  control 
upon  the  people  is  the  King's  majesty,  and  the 
hereditary  privileges  of  the  peers ;  the  balance  of 
the  state  is  the  control  for  the  people  upon  both, 
in  the  axistence  of  the  House  of  Commons ;  but 
how  can  that  control  exist  for  the  people,  unless 
they  have  the  actual  election  of  the  House  of  Com- 
mons, which,  it  is  most  notorious,  they  have  not  ?  I 
hold  in  my  hand  a  state  of  the  representation 
which,  if  the  thing  were  not  otherwise  notorious, 
I  would  prove  to  have  been  lately  offered  in  proof 
to  the  House  of  Commons,  by  an  honorable  friend 
of  mine  now  present,  whose  motion  I  had  the 
honor  to  second,  where  it  appeared  that  twelve 
thousand  people  return  near  a  majority  of  the 
House  of  Commons,  and  those  again,  under  the  con- 
trol of  about  two  hundred.  But  though  these 
facts  were  admitted,  all  redress,  and  even  discus- 
sion, was  refused.  What  ought  to  be  said  of  a 


490  SPEECH   OF   MR.    EKSKINE   ON    THE 

House  of  Commons  that  so  conducts  itself,  it  is  not 
for  me  to  pronounce;  I  will  appeal,  therefore,  to 
Mr.  Burke,  who  says,  "  that  a  House  of  Commons, 
which  in  all  disputes  between  the  people  and 
administration,  presumes  against  the  people,  which 
punishes  their  disorders,  but  refuses  even  to  in- 
quire into  their  provocations,  is  an  unnatural, 
monstrous  state  of  things  in  the  constitution." 

But  this  is  nothing ;  Mr.  Burke  goes  on  after- 
wards to  give  a  more  full  description  of  Parliament, 
and  in  stronger  language,  let  the  Solicitor-General 
take  it  down  for  his  reply,  than  any  that  has  been 
employed  by  those  who  are  to  be  tried  at  present 
as  conspirators  against  its  existence.  I  read  the 
passage  to  warn  you  against  considering  hard 
words  against  the  House  of  Commons  as  decisive 
evidence  of  treason  against  the  King.  The  pass- 
age is  in  a  well-known  work  called,  "  Thoughts  on 
the  Causes  of  the  Present  Discontents ;"  and  such 
discontents  will  always  be  present  whilst  their 
causes  continue.  The  word  present  will  apply 
just  as  well  now,  and  much  better  than  to  the 
times  when  the  honorable  gentleman  wrote  his 
book ;  for  we  are  now  in  the  heart  and  bowels  of 
another  war,  and  groaning  under  its  additional 
burdens.  I  shall  therefore  leave  it  to  the  learned 
gentleman  who  is  to  reply,  to  show  us  what  has 
happened  since  our  author  wrote,  which  renders 
the  Parliament  less  liable  to  the  same  observations 
now. 


TRIAL  OP  THOMAS  HARDY.        491 

"  It  must  always  be  the  wish  of  an  unconstitu- 
tional statesman,  that  a  House  of  Commons,  who 
are  entirely  dependent  upon  him,  should  have 
every  right  of  the  people  entirely  dependent  upon 
their  pleasure.  For  it  was  soon  discovered  that 
the  forms  of  a  free,  and  the  ends  of  an  arbitrary 
government,  were  things  not  altogether  incom- 
patible. 

"  The  power  of  the  Crown,  almost  dead  and 
rotten  as  prerogative,  has  grown  up  anew,  with 
much  more  strength  and  far  less  odium,  under  the 
name  of  influence.  An  influence  which  operated 
without  noise  and  violence ;  which  converted  the 
very  antagonist  into  the  instrument  of  power; 
which  contained  in  itself  a  perpetual  principle  of 
growth  and  renovation  ;  and  which  the  distresses 
and  the  prosperity  of  the  country  equally  tended 
to  augment,  was  an  admirable  substitute  for  a  pre- 
rogative, that,  being  only  the  offspring  of  anti- 
quated prejudices,  had  moulded  in  its  original 
stamina  irresistible  principles  of  decay  and  disso- 
lution/' 

What  is  this  but  saying  that  the  House  of  Com- 
mons is  a  settled  and  scandalous  abuse  fastened 
upon  the  people,  instead  of  being  an  antagonist 
power  for  their  protection;  an  odious  instrument 
of  power  in  the  hands  of  the  Crown,  instead  of  a 
popular  balance  against  it?  Did  Mr.  Burke  mean 
that  the  prerogative  of  the  Crown,  properly  under- 


492  SPEECH   OF   ME.    ERSKINE   ON   THE 

stood  and  exercised,  was  an  antiquated  prejudice? 
Certainly  not ;  because  his  attachment  to  a  prop- 
erly balanced  monarchy  is  notorious ;  why  then  is 
it  to  be  fastened  upon  the  prisoners,  that  they 
stigmatize  monarchy,  when  they  also  exclaim  only 
against  its  corruptions  ?  In  the  same  manner, 
when  he  speaks  of  the  abases  of  Parliament,  would 
it  be  fair  to  Mr.  Burke  to  argue,  from  the  strict 
legal  meaning  of  the  expression,  that  he  included, 
in  the  censure  on  Parliament,  the  King's  person,  or 
majesty,  which  is  part  of  the  Parliament  ?  In 
examining  the  work  of  an  author  you  must  collect 
the  sense  of  his  expression  from  the  subject  he  is 
discussing ;  and  if  he  is  writing  of  the  House  of 
Commons  as  it  affects  the  structure  and  efficacy  of 
the  government,  you  ought  to  understand  the 
word  parliament  so  as  to  meet  the  sense  and  ob- 
vious meaning  of  the  writer.  Why  then  is  this 
common  justice  refused  to  others?  Why  is  the 
word  parliament  to  be  taken  in  its  strictest  and 
least  obvious  sense  against  a  poor  shoemaker,  or 
any  plain  tradesman  at  a  Sheffield  club,  while  it  is 
interpreted  in  its  popular,  though  less  correct 
acceptation,  in  the  works  of  the  most  distinguished 
scholar  of  the  age  ?  Add  to  this,  that  the  ca*ses 
are  not  at  all  similar :  for-  Mr.  Burke  uses  the 
word  Parliament  throughout,  when  he  is  speaking 
of  the  House  of  Commons ;  without  any  concomitant 
words  which  convey  an  explanation,  but  the  sense 


TRIAL  OF  THOMAS   HARDY.  488 

of  his  subject ;  whereas  Parliament  is  fastened  upon 
the  prisoner  as  meaning  something  beyond  the 
House  of  Commons,  when  it  can  have  no  possible 
meaning  beyond  it ;  since  from  the  beginning  to 
the  end  it  is  joined  with  the  words  "  representation 
of  the  j)cople ;"  the  representation  of  the  people  in 
Parliament !  Does  not  this  most  palpably  mean 
the  House  of  Commons,  when  we  know  that  the 
people  have  no  representation  in  either  of  the 
other  branches  of  government? 

A  letter  has  been  read  in  evidence  from  Mr. 
Hardy  to  Mr.  Fox,  where  he  says  their  object  was 
universal  representation.  Did  Mr.  Fox  suppose, 
when  he  received  this  letter,  that  it  was  from  a 
nest  of  republicans  clamoring  publicly  for  an  uni- 
versal representative  constitution  like  that  of 
France?  If  he  had,  would  he  have  sent  the 
answer  he  did,  and  agreed  to  present  their  peti- 
tion? They  wrote  also  to  the  society  of  the 
Friends  of  the  People,  and  invited  them  to  send 
delegates  to  the  convention  ;  the  Attorney-General, 
who  has  made  honorable  and  candid  mention  of 
that  body,  will  not  suppose  that  it  would  have 
contented  itself  with  refusing  the  invitation  in 
terms  of  cordiality  and  regard,  if,  with  all  the 
knowledge  they  had  of  their  transactions,  they  had 
conceived  themselves  to  have  been  invited  to  the 
formation  of  a  body,  which  was  to  over-rule  and 
extinguish  all  the  authorities  of  the  state;  yet 


494  SPEECH   OF   ME.    EESKINE   ON   THE 

upon  the  perversion  of  these  two  terms,  Parlia- 
ment and  convention,  against  their  natural  inter- 
pretation, against  a  similar  use  of  them  by  others, 
and  against  the  solemn  explanation  of  them  by  the 
Crown's  own  witnesses,  this  whole  fabric  of  terror 
and  accusation  stands  for  its  support.  Letters,  it 
seems,  written  to  other  people,  are  to  be  better 
understood  by  the  gentlemen  round  this  table,  who 
never  saw  them  till  months  after  they  were  written, 
than  by  those  to  whom  they  were  addressed  and 
sent ;  and  no  right  interpretation,  forsooth,  is  to 
be  expected  from  writings  when  pursued  in  their 
regular  series,  but  they  are  to  be  made  distinct  by 
binding  them  up  in  a  large  volume,  alongside  of 
others  totally  unconnected  with  them,  and  the 
very  existence  of  whose  authors  was  unknown  to 
one  another. 

I  will  now,  gentlemen,  resume  the  reading  of 
another  part  of  Mr.  Burke,  and  a  pretty  account 
it  is  of  this  same  Parliament :  "  They  who  will 
not  conform  their  conduct  to  the  public  good,  and 
cannot  support  it  by  the  prerogative  of  the  Crown, 
have  adopted  a  new  plan.  They  have  totally 
abandoned  the  shattered  and  old-fashioned  fortress 
of  prerogative,  and  made  a  lodgment  in  the  strong- 
hold of  Parliament  itself.  If  they  have  any  evil 
design  to  which  there  is  no  ordinary  legal  power 
commensurate,  they  bring  it  into  Parliament. 
There  the  whole  is  executed  from  the  beginning 


TRIAL  OF  THOMAS   HARDY.  495 

to  the  end ;  and  the  power  of  obtaining  their 
object  absolute ;  and  the  safety  in  the  proceeding 
j»erfect;  no  rules  to  confine,  nor  after-reckonings 
to  terrify.  For  Parliament  cannot,  with  any  great 
propriety,  punish  others,  for  thing*  in  which  they 
themselves  have  been  accomplices.  Thus  its  con- 
trol upon  the  executory  power  is  lost." 

This  is  a  proposition  universal.  It  is  not  that 
the  popular  control  was  lost  under  this  or  that 
administration,  but,  generally,  that  the  people  have 
no  control  in  the  House  of  Commons.  Let  any  man 
stand  up  and  saj  that  he  disbelieves  this  to  be  the 
case;  I  believe  he  would  find  nobody  to  believe 
him.  Mr.  Burke  pursues  the  subject  thus:  "The 
distempers  of  monarchy  were  the  great  subjects  of 
apprehension  and  redress  in  the  last  century — in 
this,  the  distempers  of  Parliament."  Here,  the 
word  Parliament,  and  the  abuses  belonging  to  it, 
are  put  in  express  opposition  to  the  monarchy,  and 
cannot  therefore  comprehend  it ;  the  distempers  of 
Parliament  then  are  objects  of  serious  apprehension 
and  redress.  What  distempers?  Not  of  this  or 
that  year,  but  the  habitual  distempers  of  Parlia- 
ment :  and  then  follows  the  nature  of  the  remedv, 

ti  9 

which  shows  that  the  prisoners  are  not  singular  in 
thinking  that  it  is  by  the  voice  of  the  people  only 
that  Parliament  can  be  corrected.  "It  is  not  in 
Parliament  alone,"  says  Mr.  Burke,  "that  the 
remedy  for  Parliamentary  disorders  can  be  com- 


496  SPEECH   OF    ME.    ERSKINE   ON   THE 

pletecl;  and  hardly,  indeed,  can  it  begin  there. 
Until  a  confidence  in  government  is  re-established, 
the  people  ought  to  be  excited  to  a  more  strict  and 
detailed  attention  to  the  conduct  of  their  repre- 
sentatives. Standards  for  judging  more  system- 
atically upon  their  conduct  ought  to  be  settled  in 
the  meetings  of  counties  and  corporations,  and  fre- 
quent and  correct  lists  of  the  voters  in  all  import- 
ant questions  ought  to  be  procured.  By  such 
means  something  may  be  done." 

It  was  the  same  sense  of  the  impossibility  of  a 
reform  in  Parliament,  without  a  general  expression 
of  the  wishes  of  the  people,  that  dictated  the  Duke 
of  Richmond's  letter;  all  the  petitions  in  1780  had 
been  rejected  by  Parliament ;  this  made  the  Duke 
of  Richmond  exclaim,  that  from  that  quarter  no 
redress  was  to  be  expected,  and  that  from  the 
people  alone  he  expected  any  good  ;  and  he,  there- 
fore, expressly  invited  them  to  claim  and  assert  an 
equal  representation  as  their  indubitable  and  unal- 
ienable  birthright.  How  to  assert  their  rights, 
when  Parliament  had  already  refused  them  without 
even  the  hope,  as  the  Duke  expressed  it,  of  listen- 
ing to  them  any  more  ?  Could  the  people's  rights, 
under  such  circumstances,  be  asserted  without 
rebellion  ?  Certainly  they  might,  for  rebellion  is, 
when  bands  of  men  within  a  state  oppose  them- 
selves, by  violence,  to  the  general  will,  as  expressed 
or  implied  by  the  public  authority  ;  but  the  sense 


TRIAL  OF  THOMAS   HARDY.  407 

of  a  whole  people,  peaceably  collected,  and  operat- 
ing by  its  natural  and  certain  effect  upon  the  pub- 
lic council*,  is  not  rebellion,  but  is  paramount  to, 
and  the  parent  of,  authority  itself. 

Gentlemen,  I  am  neither  vindicating,  nor  speak- 
ing, the  language  of  inflammation  or  discontent ; 
I  shall  speak  nothing  that  can  disturb  the  order  of 
the  state ;  I  am  full  of  devotion  to  its  dignity  and 
tranquility,  and  would  not  for  worlds  let  fall  an 
expression  in  this  or  in  any  other  place  that  could 
lead  to  disturbance  or  disorder ;  but  for  that  very 
reason,  I  speak  with  firmness  of  the  rights  of  the 
people,  and  am  anxious  for  the  redress  of  their 
complaints;  because  I  believe  a  system  of  atten- 
tion to  them  to  be  a  far  better  security  and  estab- 
lishment of  every  part  of  the  government,  tlinn 
those  that  are  employed  to  preserve  them.  The 
state  and  government  of  a  country  rest,  for  their 
support,  on  the  great  body  of  the  people,  and  I 
hope  never  to  hear  it  repeated,  in  any  court  of  jus- 
tice, that  peaceably  to  convene  the  people  upon 
the  subject  of  their  own  privileges,  can  lead  to  the 
destruction  of  the  King ;  they  are  the  King's  worst 
enemies  who  hold  this  language.  It  is  a  most 
dangerous  principle,  that  the  Crown  is  in  jeopardy 
if  the  people  are  acquainted  with  their  rights,  :md 
that  the  collecting  them  together  to  consider  tlu-in, 
leads  inevitably  to  the  destruction  of  the  Sovereign. 
Do  these  gentlemen  mean  to  say  that  the  Kin--  sits 
32  B 


493     SPEECH  OF  ME.  ERSKIKE  ON  THE 

upon  his  throne  without  the  consent,  and  in  defi- 
ance of  the  wishes  of  the  great  body  of  his  people, 
and  that  he  is  kept  upon  it  by  a  few  individuals 
who  call  themselves  his  friends,  in  exclusion  of  the 
rest  of  his  subjects?  Has  the  King's  inheritance 
no  deeper  or  wider  roots  than  this?  Yes,  gentle- 
men, it  has ;  it  stands  upon  the  love  of  the  people, 
who  consider  their  own  inheritance  to  be  supported 
by  the  King's  constitutional  authority ;  this  is  the 
true  prop  of  the  throne;  and  the  love  of  every 
people  upon  earth  will  forever  uphold  a  govern- 
ment, founded,  as  ours  is,  upon  reason  and  consent, 
as  long  as  government  shall  be  itself  attentive  to 
the  general  interests  which  are  the  foundations  and 
the  ends  of  all  human  authority.  Let  us  banish, 
then,  these  unworthy  and  impolitic  fears  of  an 
unrestrained  and  enlightened  people;  let  us  not 
tremble  at  the  rights  of  man,  but,  by  giving  to 
men  their  rights,  secure  their  affections,  and 
through  their  affections,  their  obedience;  let  us 
not  broach  the  dangerous  doctrine,  that  the  rights 
of  kings  and  of  men  are  incompatible.  Our  gov- 
ernment at  the  revolution  began  upon  their  har- 
monious incorporation;  and  Mr.  Locke  defended 
King  William's  title  upon  no  other  principle  than 
the  rights  of  man.  It  is  from  the  revered  work 
of  Mr.  Locke,  and  not  from  the  revolution  in 
France,  that  one  of  the  papers  in  the  evidence — 
the  most  stigmatized — most  obviously  flowed ;  for 


TRIAL  OP  THOMAS   HARDY.  499 

it  is  proved  that  Mr.  Yorke  held  in  his  hand  Mr. 
Locke  upon  government,  when  he  delivered  his 
speech  on  the  Castle  Hill  at  Sheffield,  and  that  he 
expatiated  largely  upon  it ;  well,  indeed,  might 
the  witness  say  he  expatiated  largely,  for  there  are 
many  well-selected  passages  taken  verbatim  from 
the  book ;  and  here,  in  justice  to  Mr.  White,  let 
me  notice  the  fair  and  honorable  manner  in  which, 
in  the  absence  of  the  clerk,  he  read  this  extraordi- 
nary performance.  He  delivered  it  not  merely 
with  distinctness,  but  in  a  manner  so  impressive, 
that,  I  believe,  every  man  in  court  was  affected 
by  it. 

Gentlemen,  I  am  not  driven  to  defend  every  ex- 
pression ;  some  of  them  are  undoubtedly  improper, 
rash  and  inflammatory ;  but  I  see  nothing  in  the 
whole  taken  together,  even  if  it  were  connected 
with  the  prisoner,  that  goes  at  all  to  an  evil  pur- 
pose in  the  writer.  But  Mr.  Attorney-General  has 
remarked  upon  this  proceeding  at  Sheffield,  and 
whatever  falls  from  a  person  of  his  rank  and  just 
estimation  deserves  great  attention,  he  has  re- 
marked that  it  is  quite  apparent  they  had  resolved 
not  to  petition.  They  had  certainly  resolved  not 
at  that  season  to  petition,  and  that  seems  the 
utmost  which  can  be  maintained  from  the  evi- 
dence. But  supposing  they  had  negatived  thr 
measure  altogether;  is  there  no  way  by  which  tin- 
people  may  actively  associate  for  the  purposes  of 


500     SPEECH  OF  MR.  ERSKINE  ON  THE 

a  reform  in  Parliament,  but  to  consider  of  a  peti- 
tion to  the  House  of  Commons  ?  Might  they  not 
legally  assemble  to  consider  the  state  of  their 
liberties,  and  the  conduct  of  their  representatives  ? 
Might  they  not  legally  form  conventions  or  meet- 
ings, for  the  name  is  just  nothing,  to  adjust  a  plan 
of  rational  union  for  a  wise  choice  of  representa- 
tatives  when  Parliament  should  be  dissolved  ?  May 
not  the  people  meet  to  consider  their  interests 
preparatory  to,  and  independently  of,  a  petition 
for  any  specific  object  ?  My  friend  seems  to  con- 
sider the  House  of  Commons  as  a  substantive  and 
permanent  part  of  the  constitution ;  he  seems  to 
forget  that  the  Parliament  dies  a  natural  death ; 
that  the  people  then  re-enter  into  their  rights,  and 
that  the  exercise  of  them  is  the  most  important 
duty  that  can  belong  to  social  man  ;  how  are  such 
duties  to  be  exercised  with  effect,  on  momentous 
occasions,  but  by  concert  and  communion  ?  May 
not  the  people,  assembled  in  their  elective  dis- 
tricts, resolve  to  trust  no  longer  those  by  whom 
they  have  been  betrayed  ?  May  they  not  resolve 
to  vote  for  no  man  who  contributed  by  his  voice 
to  this  calamitous  war,  which  has  thrown  such 
grievous  and  unnecessary  burdens  upon  them  ? 
May  they  not  say  :  "  We  will  not  vote  for  those 
who  deny  we  are  their  constituents ;  nor  for  those 
who  question  our  clear  and  natural  right  to  be 
equally  represented  ?"  Since  it  is  illegal  to  carry 


TRIAL  OP  THOMAS   HARDY.  501 

up  petitions,  and  unwise  to  transact  any  public 
business  attended  by  multitudes,  because  it  tends 
to  tumult  and  disorder,  may  they  not,  for  that 
very  reason,  depute,  as  they  have  done,  the  most 
trusty  of  their  societies  to  meet  with  one  another 
to  consider,  without  the  specific  object  of  petitions, 
how  they  may  claim,  by  means  which  are  consti- 
tutional, their  imprescriptible  rights?  And  here  I 
must  advert  to  an  argument  employed  by  the 
Attorney-General,  that  the  views  of  the  societies 
towards  universal  suffrage,  carried  in  themselves, 
however  sought  to  be  effected,  an  implied  force 
upon  Parliament;  for  that,  supposing  by  invading 
it  with  the  vast  pressure,  not  of  the  public  arm, 
but  of  the  public  sentiment  of  the  nation,  the 
influence  of  which  upon  that  assembly  is  admitted, 
ought  to  be  weighty,  it  could  have  prevailed  upon 
the  Commons  to  carry  up  a  bill  to  the  King  for 
universal  representation  and  annual  Parliaments, 
his  Majesty  was  bound  to  reject  it;  and  could  not, 
without  a  breach  of  his  coronation  oath,  consent 
to  pass  it  into  an  act;  I  cannot  conceive  wln-iv 
my  friend  met  with  this  law,  or  what  he  can  pos- 
sibly mean  by  asserting  that  the  King  cannot,  con- 
sistently with  his  coronation  oath,  consent  to  any 
law  that  can  be  stated  or  imagined,  presented  to 
him  as  the  act  of  the  two  Houses  of  Parliament; 
he  could  not,  indeed,  consent  to  a  bill  sent  up  to 
him  framed  by  a  convention  of  delegates  assuming 


502  SPEECH   OF   ME.    ERSKINE   ON   THE 

legislative  functions ;  and  if  my  friend  could  have 
proved  that  the  societies,  sitting  as  a  parliament, 
had  sent  up  such  a  bill  to  His  Majesty,  I  should 
have  thought  the  prisoner,  as  a  member  of  such  a 
parliament,  was  at  least  in  a  different  situation 
from  that  in  which  he  stands  at  present;  but  as 
this  is  not  one  of  the  chimeras  whose  existence  is 
contended  for,  I  return  back  to  ask,  upon  what 
authority  it  is  maintained,  that  universal  represen- 
tation and  annual  Parliaments  coald  not  be  con- 
sented to  by  the  King,  in  conformity  to  the  wishes 
of  the  other  branches  of  the  legislature?  on  the 
contrary,  one  of  the  greatest  men  that  this  country 
ever  saw,  considered  universal  representation  to  be 
such  an  inherent  part  of  the  constitution,  as  that 
the  King  himself  might  grant  it  by  his  prerogative, 
even  without  the  Lords  and  Commons;  and  I  have 
never  heard  the  position  denied  upon  any  other 
footing  than  the  union  with  Scotland.  But  be 
that  as  it  may,  it  is  enough  for  my  purpose  that 
the  maxim,  that  the  King  might  grant  universal 
representation,  as  a  right  before  inherent  in  the 
whole  people  to  be  represented,  stands  upon  the 
authority  of  Mr.  Locke,  the  man,  next  to  Sir  Isaac 
Newton,  of  the  greatest  strength  of  understanding 
that  England,  perhaps,  ever  had;  high,  too,  in  the 
favor  of  King  William,  and  enjoying  one  of  the 
most  exalted  offices  in  the  State.  Mr.  Locke  says, 
book  2d,  chap.  13,  sect.  157  and  158:  "Things 


TRIAL  OF  THOMAS  HARDY.  503 

of  this  world  are  in  so  constant  a  flux,  that  nothing 
remains  long  in  the  same  state.  Thus  people, 
riches,  trade,  and  power,  change  their  stations,  flour- 
ishing, mighty  cities  come  to  ruin,  and  prove,  in 
time,  neglected  desolate  corners,  whilst  other  unfre- 
quented places  grow  into  populous  countries,  filled 
with  wealth  and  inhabitants.  But  things  not 
always  changing  equally,  and  private  interest  often 
keeping  up  customs  and  privileges,  when  the  rea- 
sons of  them  are  ceased,  it  often  comes  to  pass, 
that  in  governments,  where  part  of  the  legislature 
consists  of  representatives  chosen  by  the  people, 
that  in  tract  of  time  this  representation  becomes 
very  unequal  and  disproportionate  to  the  reasons 
it  was  at  first  established  upon.  To  what  gross 
absurdities  the  following  of  custom,  when  reason 
has  left  it,  may  lead,  we  may  be  satisfied,  when  we 
see  the  bare  name  of  a  town,  of  which  there 
remains  not  so  much  as  the  ruins,  where  scarce  80 
much  housing  as  a  sheep-cote,  or  more  inhabitants 
than  a  shepherd  is  to  be  found,  sends  as  many 
representatives  to  the  grand  assembly  of  law- 
makers as  a  whole  county,  numerous  in  people  and 
powerful  in  riches.  This,  strangers  stand  aniuxcd 
at,  and  every  one  must  confess  needs  a  remedy." 

"Salus  populi  supremo,  lex,  is  certainly  so  JIM 
and  fundamental  a  rule,  that  he  who  sincerely 
follows  it,  cannot  dangerously  err.  If,  thereto iv, 
the  executive,  who  has  the  power  of  convoking 


504  SPEECH   OF    MR.    ERSKINE   ON    THE 

the  legislative,  observing  rather  the  true  propor- 
tion, than  fashion  of  representation,  regulates,  not 
by  old  custom,  but  true  reason,  the  number  of 
members  in  all  places  that  have  a  right  to  be  dis- 
tinctly represented,  which  no  part  of  the  people, 
however  incorporated,  can  pretend  to,  but  in  pro- 
portion to  the  assistance  which  it  affords  to  the 
public,  it  cannot  be  judged  to  have  set  up  a  new 
legislative,  but  to  have  restored  the  old  and  true 
one,  and  to  have  rectified  the  disorders  which 
succession  of  time  had  insensibly,  as  well  as  inevi- 
tably introduced;  for  it  being  the  interest  as  well 
as  the  intention  of  the  people  to  have  a  fair  and 
equal  representative,  whoever  brings  it  nearest  to 
that,  is  an  undoubted  friend  to,  and  establisher  of 
the  government,  and  cannot  miss  the  consent  and 
approbation  of  the  community ;  prerogative  being 
nothing  but  a  power,  in  the  hands  of  the  prince,  to 
provide  for  the  public  good,  in  such  cases,  which 
depending  upon  unforeseen  and  uncertain  occur- 
rences, certain  and  unalterable  laws  could  not 
safely  direct ;  whatsoever  shall  be  done  manifestly 
for  the  good  of  the  people,  and  the  establishing 
the  government  upon  its  true  foundations,  is,  and 
always  will  be,  just  prerogative.  Whatsoever  can- 
not but  be  acknowledged  to  be  of  advantage  to 
the  society,  and  people  in  general,  upon  just  and 
lasting  measures,  will  always,  when  done,  justify 
itself;  and  whenever  the  people  shall  choose  their 


TRIAL  OF  THOMAS  HARDY.  505 

representatives  upon  just  and  undeniably  equal 
measures,  suitable  to  the  original  frame  of  the 
government,  it  cannot  be  doubted  to  be  the  will 
and  act  of  the  society,  whoever  permitted  or  caused 
them  so  to  do."  But  as  the  very  idea  of  universal 
suffrage  seems  now  to  be  considered  not  only  to 
be  dangerous  to,  but  absolutely  destructive  of 
monarchy,  you  certainly  ought  to  be  reminded 
that  the  book  which  I  have  been  reading,  and 
which  my  friend  kindly  gives  me  a  note  to  remind 
you  of,  was  written  by  its  immortal  author,  in 
defence  of  King  William's  title  to  the  Crown ;  and 
when  Dr.  Sacheverel  ventured  to  broach  those 
doctrines  of  power  and  non-resistance,  which,  under 
the  same  establishments,  have  now  become  so  un- 
accountably popular;  he  was  impeached  by  the 
people's  representatives  for  denying  their  rights, 
which  had  been  asserted  and  established  at  the 
glorious  era  of  the  revolution. 

Gentlemen,  if  I  were  to  go  through  all  the  mat- 
ter which  I  have  collected  upon  this  subject,  or 
which  obtrudes  itself  upon  my  mind,  from  com- 
mon reading,  in  a  thousand  directions,  my  strength 
would  fail  long  before  my  duty  was  fulfilled ;  I 
had  very  little  when  I  came  into  court,  and  I  lias  t- 
abundantly  less  already;  I  must,  therefore,  man- 
age what  remains  to  the  best  advantage.  I  pro- 
ceed, therefore,  to  take  a  view  of  such  parts  of  the 
evidence  as  appear  to  me  to  be  the  most  material  for 


506     SPEECH  OF  ME.  EESKINE  ON  THE 

the  proper  understanding  of  the  case;  I  have  had 
no  opportunity  of  considering  it,  but  in  the  inter- 
val which  the  indulgence  of  the  court,  and  your 
own,  has  afforded  me,  and  that  has  been  but  for  a 
very  few  hours  this  morning ;  but  it  occurred  to 
me,  that  the  best  use  I  could  make  of  the  time 
given  to  me  was,  if  possible,  to  disembroil  this 
chaos ;  to  throw  out  of  view  everything  irrelevant, 
which  only  tended  to  bring  chaos  back  again,  to 
take  what  remained  in  order  of  time,  to  select  cer- 
tain stages  and  resting-places,  to  review  the  effect 
of  the  transactions,  as  brought  before  us,  and  then 
to  see  how  the  written  evidence  is  explained  by 
the  testimony  of  the  witnesses  who  have  been 
examined. 

The  origin  of  the  Constitutional  Society  not 
having  been  laid  in  evidence  before  you,  the  first 
thing,  both  in  point  of  date,  and  as  applying  to 
show  the  objects  of  the  different  bodies,  is  the 
original  address  and  resolution  of  the  Correspond- 
ing Society  on  its  first  institution,  and  when  it  first 
began  to  correspond  with  the  other,  which  had 
formerly  ranked  amongst  its  members  so  many 
illustrious  persons ;  and  before  we  look  to  the  mat- 
ter of  this  institution,  let  us  recollect  that  the 
objects  of  it  were  given  without  reserve  to  the 
public,  as  containing  the  principles  of  the  associa- 
tion ;  and  I  may  begin  with  demanding,  whether 
the  annals  of  this  country,  or  indeed  the  universal 


TRIAL  OF  THOMAS   HARDY.  507 

history  of  mankind,  afford  an  instance  of  a  plot 
and  conspiracy  voluntarily  given  up  in  its  very 
infancy  to  government,  and  the  whole  public,  and 
of  which,  to  avoid  the  very  thing  that  has  liaj  - 
pened,  the  arraignment  of  conduct  at  a  future 
period,  and  the  imputation  of  secrecy  where  no 
secret  was  intended,  a  regular  notice  by  letter 
was  left  with  the  secretary  of  state,  and  a  receipt 
taken  at  the  public  office,  as  a  proof  of  the  pub- 
licity of  their  proceeding,  and  the  sense  they 
entertained  of  their  innocence.  For  the  views 
and  objects  of  the  society,  we  must  look  to  the 
institution  itself,  which  you  are  indeed  desired  to 
look  at  by  the  Crown ;  for  their  intentions  are  not 
considered  as  deceptions  in  this  instance,  but  as 
plajnly  revealed  by  the  very  writing  itself. 

Gentlemen,  there  was  a  sort  of  silence  in  the 
court,  I  do  not  say  an  affected  one,  for  I  mean  no 
possible  offence  to  any  one,  but  there  seemed  to  be 
an  effect  expected  from  beginning,  not  with  the 
address  itself,  but  with  the  very  bold  motto  to  it, 
though  in  verse : 

"  Unblcst  by  virtue,  government  a  league 
Become*,  a  circling  junto  of  the  great 
To  rob  bj  law  ;  religion  mild,  a  yoke 
To  tame  the  stooping  soul,  a  trick  of  state 
To  mask  their  rapine,  and  to  share  the  prey. 
Without  it,  what  are  senates,  but  a  face 
Of  consultation  deep  and  reason  free, 
While  the  determin'd  voice  and  heart  are  sold? 
What  boasted  freedom,  but  a  sounding  name  ? 
And  what  election,  but  a  market  vile, 
Of  slaves  self- bartered!" 


508  SPEECH   OF   ME.    ERSKINE   ON   THE 

I  almost  fancy  I  heard  them  say  to  me,  what 
think  you  of  that  to  set  out  with  ?  Show  me  the 
parallel  of  that.  Gentlemen,  I  am  sorry,  for  the 
credit  of  the  age  we  live  in,  to  answer,  that  it  is 
difficult  to  find  the  parallel;  because  the  age 
affords  no  such  poet  as  he  who  wrote  it ;  these  are 
the  words  of  Thomson ;  and  it  is  under  the  ban- 
ners of  his  proverbial  benevolence,  that  these  men 
are  supposed  to  be  engaged  in  plans  of  anarchy 
and  murder ;  under  the  banners  of  that  great  and 
good  man,  whose  figure  you  may  still  see  in  the 
venerable  shades  of  Hagley,  placed  there  by  the 
virtuous,  accomplished,  and  public-spirited  Lyttel- 
ton;  the  very  poem,  too,  written  under  the  au- 
spices of  his  Majesty's  royal  father,  when  heir-appa- 
rent to  the  crown  of  Great  Britain,  nay,  within. the 
very  walls  of  Carlton  House,  which  afforded  an 
asylum  to  matchless  worth  and  genius  in  the  person 
of  this  great  poet ;  it  was  under  the  roof  of  a  Prince 
of  Wales  that  the  Poem  of  Liberty  was  written; 
and  what  better  return  could  be  given  to  a  prince 
for  his  protection,  than  to  blazon,  in  immortal 
numbers,  the  only  sure  title  to  the  crown  he  was 
to  wear,  the  freedom  of  the  people  of  Great 
Britain?  And  it  is  to  be  assumed,  forsooth,  in 
the  year  1794,  that  the  unfortunate  prisoner  before 
you  was  plotting  treason  and  rebellion,  because, 
with  a  taste  and  feeling  beyond  his  humble  station, 
his  first  proceeding  was  ushered  into  view,  under 


TRIAL   OF  THOMAS   HARDY.  509 

the  hallowed  sanction  of  this  admirable  person, 
the  friend  and  defender  of  the  British  constitution; 
whose  countrymen  are  preparing  at  this  moment 
(may  my  name  descend  amongst  them  to  the  latest 
posterity ! )  to  do  honor  to  his  immortal  memory. 
Pardon  me,  gentlemen,  for  this  desultory  digres- 
sion— I  must  express  myself  ad  the  current  of  my 
mind  will  carry  me. 

If  we  look  at  the  whole  of  the  institution  it-fit', 
it  exactly  corresponds  with  the  plan  of  the  Duke 
of  Richmond  as  expressed  in  the  letters  to  Colonel 
Sh: i mi: i n,  and  to  the  high  sheriff  of  Sussex  ;  this 
plan  they  propose  to  follow,  in  a  public  address  to 
the  nation,  and  all  their  resolutions  are  framed  for 
its  accomplishment ;  and  I  desire  to  know  in  what 
they  have  departed  from  either,  and  what  they 
have  done  which  has  not  been  done  before,  without 
blame  or  censure,  in  the  pursuance  of  the  same 
object.  I  am  not  speaking  of  the  libels  they  may 
have  written,  which  the  law  is  open  to  punish,  but 
what  part  of  their  conduct  has,  as  applicable  to 
the  subject  in  question,  been  unprecedented.  I 
have,  at  this  moment,  in  my  eye,  an  honorable 
friend  of  mine,  and  a  distinguished  member  of  tin* 
House  of  Commons,  who,  in  my  own  remembrance, 
I  believe  in  1780,  sat  publicly  at  Guildhall  with 
many  others,  some  of  them  magistrates  of  the  city, 
as  ft  convention  of  delegates,  for  the  same  objects ; 
and,  what  is  still  more  to  the  point,  just  before  the 


510     SPEECH  OF  ME.  EESKINE  ON  THE 

convention  began  to  meet  at  Edinburgh,  whose 
proceedings  have  been  so  much  relied  on,  there 
was  a  convention  regularly  assembled,  attended  by 
the  delegates  from  all  the  counties  of  Scotland,  for 
the  express  and  avowed  purpose  of  altering  the 
constitution  of  Parliament;  not  by  rebellion,  but 
by  the  same  means  employed  by  the  prisoner ;  the 
Lord  Chief  Baron  of  Scotland  sat  in  the  chair,  and 
was  assisted  by  some  of  the  first  men  in  that 
country,  and  amongst  others,  by  an  honorable 
person  to  whom  I  am  nearly  allied,  who  is  at  the 
very  head  of  the  bar  in  Scotland,  and  most  avow- 
edly attached  to  the  law  and  the  constitution.* 
These  gentlemen,  whose  good  intentions  never  fell 
into  suspicion,  had  presented  a  petition  for  the 
alteration  of  election  laws,  which  the  House  of 
Commons  had  rejected,  and  on  the  spur  of  that 
very  rejection  they  met  in  a  convention  at  Edin- 
burgh, in  1793;  and  the  style  of  their  first  meeting 
was,  "  A  convention  of  delegates,  chosen  from  the 
counties  of  Scotland,  for  altering  and  amending  the 
laws  concerning  elections" — not  for  considering 
how  they  might  be  best  amended — not  for  peti- 
tioning Parliament  to  amend  them ;  but  for 
altering  and  amending  the  election  laws. 
These  meetings  were  regularly  published,  and  I 
will  prove,  that  their  first  resolution,  as  I  have 

*  The   Hon.  Henry  Erskine,  Mr.  Erskine's  brother,  then    Dean    of 
the  Faculty  of  Advocates,  at  Edinburgh. 


TRIAL  OF  THOMAS   HARDY.  51 1 

road  it  to  you,  was  brought  up  to  London,  and  de- 
livered to  the  editor  of  the  Morning  Chronicle,  by 
Sir  Thomas  Dundas,  lately  created  a  peer  of  great 
Britain,  and  paid  for  by  him  as  a  public  advertise- 
ment. Now,  suppose  any  man  had  imputed  trea- 
son or  sedition  to  these  honorable  persons,  what 
would  have  been  the  consequence?  They  would 
have  been  considered  as  infamous  libellers  and 
traducers,  and  deservedly  hooted  out  of  civilized 
life;  why  then  are  different  constructions  to  be 
put  upon  similar  transactions  ?  Why  is  every- 
thing to  be  hejd  up  as  bona  fide  when  the  example 
is  set,  and  mala  fide  when  it  is  followed  ?  Why 
have  I  not  as  good  a  claim  to  take  credit  for  honest 
purpose  in  the  poor  man  I  am  defending,  against 
whom  not  a  contumelious  expression  has  been 
proved,  as  when  we  find  the  same  expressions  in 
the  mouths  of  the  Duke  of  Richmond  or  Mr. 
Burke?  I  ask  nothing  more  from  this  observation, 
than  that  a  sober  judgment  may  be  pronounced 
from  the  quality  of  the  acts  which  can  be  fairly 
established ;  each  individual  standing  responsible 
only  for  his  own  conduct,  instead  of  having  our 
imaginations  tainted  with  cant  phrases,  and  a  far- 
rago of  writings  and  speeches,  for  which  the 
prisoner  is  not  responsible,  and  for  which  the 
authors,  if  they  be  criminal,  are  liable  to  be 
brought  to  justice. 

But  it  will  be  said  gentlemen ^that  all  the  con- 


512     SPEECH  OF  MR.  EESKINE  ON  THE 

stitutional  privileges  of  the  people  are  conceded ; 
that  their  existence  was  never  denied  or  invaded ; 
and  that  their  right  to  petition  and  to  meet  for 
the  expression  of  their  complaints,  founded  or  un- 
founded, was  never  called  in  question  ;  these,  it 
will  be  said,  are  the  rights  of  subjects ;  but  that 
the  rights  of  man  are  what  alarms  them :  every 
man  is  considered  as  a  traitor  who  talks  about  the 
rights  of  man ;  but  this  bugbear  stands  upon  the 
same  perversion  with  its  fellows. 

The  rights  of  man  are  the  foundation  of  all  gov- 
ernment, and  to  secure  them  is  the  only  reason  of 
men's  submitting  to  be  governed ;  it  shall  not  be 
fastened  upon  the  unfortunate  prisoner  at  the  bar, 
nor  upon  any  other  man,  that  because  these  nat- 
ural rights  were  asserted  in  France,  by  the  destruc- 
tion of  a  government  which  oppressed  and  sub- 
verted them — a  process  happily  effected  here  by 
slow  and  imperceptible  improvements — that,  there- 
fore, they  can  only  be  so  asserted  in  England, 
where  the  government,  through  a  gradation  of 
improvement,  is  well  calculated  to  protect  them. 
We  are,  fortunately,  not  driven  in  this  country  to 
the  terrible  alternatives  which  were  the  unhappy 
lot  of  France,  because  we  have  had  a  happier  des- 
tiny in  the  forms  of  a  free  constitution ;  this, 
indeed,  is  the  express  language  of  many  of  the 
papers  before  you,  that  have  been  complained  of; 
particularly  in  one  alluded  to  by  the  Attorney-Gen- 


TRIAL  OF  THOMAS   HARDY.  513 

eral,  as  having  been  written  by  a  gentleman  with 
whom  I  am  particularly  acquainted;  and  though 
in  that  spirited  composition  there  are,  perhaps, 
some  expressions  proceeding  from  warmth  which 
he  may  not  desire  me  critically  to  justify,  yet  I 
will  venture  to  affirm,  from  my  own  personal 
knowledge,  that  there  is  not  a  man  in  court  more 
honestly  public-spirited  and  zealously  devoted  to  the 
constitution  of  King,  Lords,  and  Commons,  than  the 
honorable  gentleman  I  allude  to  (Felix  Vaughan, 
Esq.,  barrister-at-law) ;  it  is  the  phrase,  therefore, 
and  not  the  sentiment  expressed  by  it,  that  can 
alone  give  justifiable  offence;  it  is,  it  seems,  a  new 
phrase,  commencing  in  revolutions,  and  never  used 
before  in  discussing  the  rights  of  British  subjects, 
and  therefore  can  only  be  applied  in  the  sense  of 
those  who  framed  it;  but  this  is  so  far  from  being 

o 

the  truth,  that  the  very  phrase  sticks  in  my  mem- 
ory, from  the  memorable  application  of  it  to  the 
rights  of  subjects,  under  this  and  every  other 
establishment,  by  a  gentleman  whom  you  will  not 
suspect  of  using  it  in  any  other  sense.  The  rights 
of  man  were  considered  by  Mr.  Burke,  at  the  time 
that  the  great  uproar  was  made  upon  a  supposed 
invasion  of  the  East  India  Company's  charter.  t<> 
be  the  foundation  of,  and  paramount  to  all.  tin- 
laws  and  ordinances  of  a  state;  the  ministry,  you 
may  remember,  were  turned  out  for  Mr.  F<  \  - 
India  Bill,  which  their  opponents  termed  an  attack 
33  B 


514  SPEECH   OF   ME.    ERSKINE   ON  THE 

upon  the  chartered  rights  of  man,  or  in  other 
words,  upon  the  abuses  supported  by  a  monopoly 
in  trade.  Hear  the  sentiments  of  Mr.  Burke, 
when  the  natural  and  chartered  rights  of  men  are 
brought  into  contest.  Mr.  Burke,  in  his  speech  in 
the  House  of  Commons,  expressed  himself  thus: 
"The  first  objection  is,  that  the  bill  is  an  attack 
on  the  chartered  rights  of  men.  As  to  this  objec- 
tion, I  must  observe  that  the  phrase  of  'the  char- 
tered rights  of  men,'  is  full  of  affectation;  and 
very  unusual  in  the  discussion  of  privileges  con- 
ferred by  charters  of  the  present  description.  But 
it  is  not  difficult  to  discover  what  end  that  ambigu- 
ous mode  of  expression,  so  often  reiterated,  is 
meant  to  answer. 

"  The  rights  of  men,  that  is  to  say,  the  natural 
rights  of  mankind,  are  indeed  sacred  things;  and 
if  any  public  measure  is  proved  mischievously  to 
affect  them,  the  objection  ought  to  be  fatal  to  that 
measure,  even  if  no  charter  at  all  could  be  set  up 
against  it.  And  if  these  natural  rights  are  further 
affirmed  and  declared  by  express  covenants,  clearly 
defined  and  secured  against  chicane,  power,  and 
authority,  by  written  instruments  and  positive 
engagements,  they  are  in  a  still  better  condition; 
they  then  partake  not  only  of  the  sanctity  of  the 
object  so  secured,  but  of  that  solemn  public  faith 
itself,  which  secures  an  object  of  such  importance. 
Indeed,  this  formal  recognition,  by  the  sovereign 


TRIAL  OF  THOMAS  HARDY.        515 

power,  of  an  original  right  in  the  subject,  can 
never  be  subverted,  but  by  rooting  up  the  holding 
radical  principles  of  government,  and  even  of 
society  itself." 

The  Duke  of  Richmond  also,  in  his  public  letter 
to  the  high  sheriff  of  Sussex,  rests  the  rights  of 
the  people  of  England  upon  the  same  horrible  and 
damnable  principle  of  the  Rights  of  Man.  Let 
gentlemen,  therefore,  take  care  they  do  not  pull 
down  the  very  authority  which  they  camo  here  to 
support;  let  them  remember,  that  his  Majesty's 
family  was  called  to  the  throne  upon  the  very 
principle,  that  the  ancient  Kings  of  this  country 
had  violated  these  sacred  trusts;  let  them  recol- 
lect, too,  in  what  the  violation  was  charged  to 
exist:  it  was  charged  by  the  Bill  of  Rights  to  exist 
in  cruel  and  infamous  trials;  in  the  packing  of 
juries,  and  in  disarming  the  people,  whose  arms  arc 
their  unalienable  refuge  against  oppression.  But 
did  the  people  of  England  assemble  to  make  this 
declaration?  No!  because  it  was  unnecessary. 
The  sense  of  the  people,  against  a  corrupt  and 
scandalous  government,  dissolved  it,  by  almost  the 
ordinary  forms  by  which  the  old  government  itself 
was  administered.  King  William  sent  his  writs  to 
those  who  had  sat  in  the  former  Parliament;  but 
will  any  man,  therefore,  tell  me,  that  that  Parlia- 
ment re-organized  the  government  without  tin- 
will  of  the  people?  and  that  it  was  not  their  con- 


516  SPEECH   OF   MR.    EESKINE   ON   THE 

sent  which  entailed  on  King  William  a  particular 
inheritance,  to  be  enjoyed  under  the  dominion  of 
the  law?  Gentlemen,  it  was  the  denial  of  these 
principles  asserted  at  the  revolution  in  England, 
that  brought  forward  the  author  of  the  Eights  of 
Man,  and  stirred  up  this  controversy  which  has 
given  such  alarm  to  government ;  but  for  this  the 
literary  labors  of  Mr.  Paine  had  closed.  He 
asserts  it  himself  in  his  book,  and  every  body 
knows  it.  It  was  not  the  French  revolution,  but 
Mr.  Burke's  reflections  upon  it,  followed  up  by 
another  work  on  the  same  subject,  as  it  regarded 
things  in  England,  which  brought  forward  Mr. 
Paine,  and  which  rendered  his  works  so  much  the 
object  of  attention  in  this  country.  Mr.  Burke 
denied  positively  the  very  foundation  upon  which 
the  revolution  of  1688  must  stand  for  its  support, 
viz.,  the  right  of  the  people  to  change  their  gov- 
ernment; and  he  asserted,  in  the  teeth  of  His 
Majesty's  title  to  the  Crown,  that  no  such  right  in 
the  people  existed ;  this  is  the  true  history  of  the 
Second  Part  of  the  Eights  of  Man.  The  First  Part 
had  little  more  aspect  to  this  country  than  to 
Japan ;  it  asserted  the  right  of  the  people  of 
France  to  act  as  thev  had  acted,  but  there  was 

tf  f 

little  which  pointed  to  it  as  an  example  for  Eng- 
land. There  had  been  a  despotic  authority  in 
France  which  the  people  had  thrown  down,  and 
Mr.  Burke  seemed  to  question  their  right  to  do  so. 


TRIAL  OP  THOMAS  HARDY.  517 

Mr.  Paine  maintained  the  contrary  in  his  answer ; 
and  having  imbibed  the  principles  of  republican 
government,  during  the  American  revolution,  he 
mixed  with  the  controversy  many  coarse  and 
harsh  remarks  upon  monarchy  as  established,  even 
in  England,  or  in  any  possible  form.  But  this  was 
collateral  to  the  great  object  of  his  work,  which 
was  to  maintain  the  ri^ht  of  the  people  to  choose 
their  government;  this  was  the  right  which  was 
questioned,  and  the  assertion  of  it  was  most  inter- 
esting to  many  who  were  most  strenuously  attached 
to  the  English  government.  For  men  may  assert 
the  right  of  every  people  to  choose  their  govern- 
ment without  seeking  to  destroy  their  own.  This 
accounts  for  many  expressions  imputed  to  the 
unfortunate  prisoners,  which  I  have  often  uttered 
myself,  and  shall  continue  to  utter  every  day  of 
my  life,  and  call  upon  the  spies  of  government  to 
record  them.  I  will  say  anywhere,  without  fear, 
nay,  I  will  say  here,  where  I  stand,  that  an  attempt 
to  interfere,  by  despotic  combination  and  violence, 
with  any  government  which  a  j>eople  choose  to 
give  to  themselves,  whether  it  be  good  or  evil,  is 
an  oppression  and  subversion  of  the  natural  and 
unalienable  rights  of  man;  and  though  the 
ernment  of  this  country  should  countenance  such 
a  system,  it  would  not  only  be  still  legal  for  me  t<> 
express  my  detestation  of  it,  as  I  here  deliberately 
express  it,  but  it  would  become  my  interest  and 


518  SPEECH   OF   MR.    EKSKINE   ON   THE 

my  duty.  For,  if  combinations  of  despotism  can 
accomplish  such  a  purpose,  who  shall  tell  me,  what 
other  nation  shall  not  be  the  prey  of  their  ambi- 
tion ?  Upon  the  very  principle  of  denying  to  a 
people  the  right  of  governing  themselves,  how  are 
we  to  resist  the  French,  should  they  attempt  by 
violence  to  fasten  their  government  upon  us  ?  Or, 
what  inducement  would  there  be  for  resistance  to 
preserve  laws,  which  are  not,  it  seems,  our  own, 
but  which  are  unalterably  imposed  upon  us  ?  The 
very  argument  strikes,  as  with  a  palsy,  the  arm 
and  vigor  of  the  nation.  I  hold  dear  the  privi- 
leges I  am  contending  for,  not  as  privileges  hostile 
to  the  constitution,  but  as  necessary  for  its  pres- 
ervation ;  and  if  the  French  were  to  intrude  by 
force  upon  the  government  of  our  own  free  choice, 
I  should  leave  these  papers  and  return  to  a  pro- 
fession that,  perhaps,  I  better  understand. 

The  next  evidence  relied  on,  after  the  institution 
of  the  Corresponding  Society,  is  a  letter  written 
to  them  from  Norwich,  dated  the  llth  of  Novem- 
ber, 1792,  with  the  answer,  dated  the  26th  of  the 
same  month ;  it  is  asserted,  that  this  correspond- 
ence shows,  they  aimed  at  nothing  less  than  the 
total  destruction  of  the  monarchy,  and  that  they 
therefore,  veil  their  intention  under  covert  and 
ambiguous  language.  I  think,  on  the  other  hand, 
and  I  shall  continue  to  think  so,  as  long  as  I  am 
capable  of  thought,  that  it  was  impossible  for 


TRIAL  OF  THOMAS  HARDY.        519 

words  to  convey  more  clearly  the  explicit  avowal 
of  their  original  plan  for  a  constitutional  reform  in 
the  House  of  Commons.  This  letter  from  Norwich, 
after  congratulating  the  Correspond  ing  Society  on 
its  institution,  asks  several  questions  arising  out  of 
the  proceedings  of  other  societies  in  different  parts 
of  the  kingdom,  which  they  profess  not  thoroughly 
to  understand. 

The  Sheffield  people,  they  observe,  seemed  at 
first  determined  to  support  the  Duke  of  Rich- 
mond's plan  only,  but  that  they  had  afterwards 
observed  a  disposition  in  them  to  a  more  moderate 
plan  of  reform  proposed  by  the  Friends  of  the 
People  in  London ;  whilst  the  Manchester  people, 
by  addressing  Mr.  Paine,  whom  the  Norwich 
people  had  not  addressed,  seemed  to  be  intent  on 
republican  principles  only;  they  therefore  put  a 
question,  not  at  all  of  distrust,  or  suspicion,  but 
bona  fide,  if  ever  there  was  good  faith  between 
men,  whether  the  Corresponding  Society  meant  to 
be  satisfied  with  the  plan  of  the  Duke  of  Rich- 
mond ?  or,  whether  it  was  their  private  design  to 
rip  up  monarchy  by  the  roots,  and  place  demon; icy 
in  its  stead?  Now  hear  the  answer,  from  wlu-ix v 
it  is  inferred  that  this  last  is  their  intention  ;  tlu-y 
begin  their  answer  with  recapitulating  the  demand 
of  their  correspondent,  as  regularly  as  a  trades- 
man, who  has  an  order  for  goods,  recapitulates  tlu- 
order,  that  there  may  be  no  ambiguity  in  the 


520  SPEECH    OF   MR.    EESKINE   ON   THE 

ence  or  application  of  the  reply,  and  then  they  say, 
as  to  the  objects  they  have  in  view  they  refer  them 
to  their  addresses.     "You   will  thereby  see  that 
they  mean  to  disseminate  political  knowledge,  and 
thereby  engage  the  judicious  part  of  the  nation  to 
demand  the  recovery  of  their  lost  rights  in  annual 
Parliaments — the   members  of  these    Parliaments 
owing  their  election  to  unbought  suffrages."     They 
then  desire  them  to  be  careful  to  avoid  all  dispute, 
and  say  to  them,  put  monarchy,  democracy,  and 
even  religion,  quite  aside,  and  "Let  your  endeavors 
go  to  increase  the  numbers  of  those  who  desire  a 
full   and  equal  representation  of  the  people,  and 
leave  to  a  Parliament  so  chosen,  to  reform  all  exist- 
ing abuses;  and  if  they  don't  answer,  at  the  year's 
end,  you  may  choose  others  in  their  stead."     The 
Attorney-General  says  this  is  lamely  expressed ;  I, 
on  the  other  hand,  say  that   it  is  not  only  not 
lamely  expressed,  but  anxiously  worded  to  put  an 
end  to  dangerous  speculations.     Leave  all  theories 
undiscussed ;  do  not  perplex    yourselves  with  ab- 
stract questions  of  government;  endeavor  practi- 
cally to  get   honest  representatives,    and,   if  they 
deceive  you,  then  what?  bring  on  a   revolution? 
No !     Choose   others   in  their   stead.     They  refer 
also  to  their  address,  which  lay  before  their  cor- 
respondent, which   address   expresses   itself  thus : 
"Laying  aside  all  claim  to  originality,  we  claim  no 
other  merit  than  that  of  reconsidering  and  verifv- 


TRIAL  OF  THOMAS  HARDY.        521 

ing  what  has  already  been  urged  in  our  common 
muse  by  the  Duke  of  Richmond  and  Mr.  Pitt,  and 
their  then  honest  party." 

When  the  language  of  the  letter,  which  is 
branded  as  ambiguous,  thus  stares  them  in  the 
face  as  an  undeniable  answer  to  the  charge,  they 
then  have  recourse  to  the  old  refuge  of  mala  Jitleg  ; 
all  this  they  say  is  but  a  cover  for  hidden  treason. 
But  I  ask  you,  gentlemen,  in  the  name  of  God, 
and  as  fair  and  honest  men,  what  reason  upon 
earth  there  is  to  suppose  that  the  writers  of  this 
letter  did  not  mean  what  they  expressed?  Are 
you  to  presume  in  a  court  of  justice,  and  upon  a 
trial  for  life,  that  men  write  with  duplicity  in  their 
most  confidential  correspondence,  even  to  those 
with  whom  thev  are  confederated  ?  Let  it  be 

v 

recollected,  also,  that  if  this  correspondence  was 
calculated  for  deception,  the  deception  must  have 
been  understood  and  agreed  upon  by  all  parties 
concerned ;  for  otherwise  you  have  a  conspiracy 
amongst  persons  who  are  at  cross  purposes  with 
one  another;  consequently  the  conspiracy,  if  this 
be  a  branch  of  it,  is  a  conspiracy  of  thousands  and 
ten  thousands,  from  one  end  of  the  kingdom  t<> 
the  other,  who  are  all  guilty,  if  any  of  the  prison- 
ers are  guilty  ;  upwards  of  forty  thousand  persons, 
upon  the  lowest  calculation,  must  alike  be  liable  to 
the  pains  and  penalties  of  the  law,  and  hold  their 
lives  as  tenants  at  will  of  the  ministers  of  the 


522     SPEECH  OF  MR.  ERSKINE  ON  THE 

Crown.  In  whatever  aspect,  therefore,  this  prose- 
cution is  regarded,  new  difficulties  and  new  uncer- 
tainties and  terrors  surround  it. 

The  next  thing  in  order  that  we  have  to  look  at, 
is  the  convention  at  Edinburgh.  It  appears  that 
a  letter  had  been  written  by  Mr.  Skirving,  who 
was  connected  with  reformers  in  Scotland,  proceed- 
ing avowedly  upon  the  Duke  of  Richmond's  plan, 
proposing  that  there  should  be  a  convention  from 
the  societies  assembled  at  Edinburgh.  Now  you 
will  recollect,  in  the  opening,  that  the  Attorney- 
General  considered  all  the  great  original  sin  of  this 
conspiracy  and  treason  to  have  originated  with  the 
societies  in  London ;  that  the  country  societies 
were  only  tools  in  their  hands,  and  that  the  Edin- 
burgh convention  was  the  commencement  of  their 
projects;  and  yet  it  plainly  appears  that  this  con- 
vention originated  from  neither  of  the  London 
societies,  but  had  its  beginning  at  Edinburgh, 
where,  just  before,  a  convention  had  been  sitting 
for  the  reform  in  Parliament,  attended  by  the 
principal  persons  in  Scotland  ;  and  surely,  without 
adverting  to  the  nationality  so  peculiar  to  the  peo- 
ple of  that  country,  it  is  not  at  all  suspicious,  that, 
since  they  were  to  hold  a  meeting  for  similar 
objects,  they  should  make  use  of  the  same  style 
for  their  association ;  and  that  their  deputies 
should  be  called  delegates,  when  delegates  had 
attended  the  other  convention  from  all  the  coun- 


TBIAL  OF  THOMAS   HARDY.  ./Jo 

ties,  and  whom  they  were  every  day  looking  at  in 
their  street?,  in  the  course  of  the  very  same  year 
that  Skirviug  wrote  his  letter  on  the  subject. 
The  views  of  the  Corresponding  Society,  as  they 
regarded  this  convention,  and  consequently  the 
views  of  the  prisoner,  must  he  collected  from  the 
written  instructions  to  the  delegates,  unless  they 
can  be  falsified  by  matter  which  is  collateral.  If  I 
constitute  an  agent,  I  am  bound  by  what  he  does, 
but  always  with  this  limitation,  for  what  he  does 
within  the  scope  of  his  agency  ;  if  I  constitute  an 
agent  to  buy  horses  for  me,  and  he  commits  high 
treason,  it  will  not,  I  hope,  be  argued  that  I  am 
to  be  hanged.  If  I  constitute  an  agent  for  any 
business  that  can  be  stated,  and  he  goes  beyond 
his  instructions,  he  must  answer  for  himself  beyond 
their  limits ;  for  beyond  them  he  is  not  my  repre- 
sentative. The  acts  done,  therefore,  at  the  Scotch 
convention,  whatever  may  be  their  quality,  are 
evidence  to  show,  that,  in  point  of  fact,  a  certain 
number  of  people  got  together,  and  did  anything 
you  choose  to  call  illegal ;  but,  as  far  as  it  con- 
cerns me,  if  I  am  not  present,  you  are  limited  by 
my  instructions,  and  have  not  advanced  a  single 
step  upon  your  journey  to  convict  me;  the  in- 
structions to  Skirving  have  been  read,  and  spi-ak 
for  themselves  they  are  strictly  legal,  and  pursue 
the  avowed  object  of  the  society ;  and  it  will  be 
for  the  Solicitor-General  to  point  out,  in  his  reply. 


524  SPEECH    OF    ME.    ERSKINE   ON    THE 

any  counter  or  secret  instructions,  or  any  collateral 
conduct,  contradictory  of  the  good  faith  with 
which  they  were  written.  The  instructions  are  in 
these  words  :  "  The  delegates  are  instructed,  on 
the  part  of  this  society,  to  assist  in  bringing  for- 
ward and  supporting  any  constitutional  measure 
for  procuring  a  real  representation  of  the  commons 
of  Great  Britain."  What  do  you  say,  gentlemen, 
to  this  language  ?  how  are  men  to  express  them- 
selves who  desire  a  constitutional  reform?  The 
object  and  the  mode  of  effecting  it  were  equally 
legal ;  this  is  most  obvious  from  the  conduct  of 
the  Parliament  of  Ireland,  acting  under  directions 
from  England — they  passed  the  convention  bill, 
and  made  it  only  a  misdemeanor,  knowing  that, 
\)j  the  law  as  it  stood,  it  was  no  misdemeanor  at 
all.  Whether  this  statement  may  meet  with  the 
approbation  of  others,  I  care  not ;  I  know  the  fact 
to  be  so,  and  I  maintain  that  you  cannot  prove 
upon  the  convention  which  met  at  Edinburgh, 
and  which  is  charged  to-day  with  high  treason, 
one-thousandth  part  of  what,  at  last,  worked  up 
government  in  Ireland  to  the  pitch  of  voting  it 
a  misdemeanor. 

Gentlemen,  I  am  not  vindicating  anything  that 
can  promote  disorder  in  the  country,  but  I  am 
maintaining  that  the  worst  possible  disorder  that 
can  fall  upon  a  country  is,  when  subjects  are 
deprived  of  the  sanction  of  clear  and  unambiguous 


TRIAL  OF   THOMAS   HARDY.  525 

laws.  If  wrong  is  committed,  let  punishment 
follow  according  to  the  measure  of  that  wrong; 
if  men  are  turbulent,  let  them  be  visited  by  the 
laws  according  to  the  measure  of  their  turbulency ; 
if  they  write  libels  upon  government,  let  them 'be 
punished  according  to  the  quality  of  those  libels; 
but  you  must  not,  and  will  not,  because  the  sta- 
bility of  the  monarchy  is  an  important  concern  to 
the  nation,  confound  the  nature  and  distinctions 
of  crimes,  and  pronounce  that  the  life  of  a  Sover- 
eign has  been  invaded,  because  the  privileges  of 
the  people  have  been,  perhaps,  irregularly  and 
hotly  asserted ;  you  will  not,  to  give  security  to 
government,  repeal  the  most  sacred  laws  instituted 
for  our  protection,  and  which  are,  indeed,  the  only 
consideration  for  our  submitting  at  all  to  govern- 
ment. If  the  plain  letter  of  the  statute  of  Edward 
the  Third  applies  to  the  conduct  of  the  prisoners, 
let  it  in  God's  name  be  applied ;  but  let  neither 
their  conduct  nor  the  law  that  is  to  judge  it,  be 
tortured  by  construction ;  nor  suffer  the  tran- 
saction, from  whence  you  are  to  form  a  dispassion- 
ate conclusion  of  intention,  to  be  magnified  by 
scandalous  epithets,  nor  overwhelmed  in  an  uudis- 
tinguishable  mass  of  matter,  in  which  you  may  be 
lost  and  bewildered,  having  missed  the  only  parts 
which  could  have  furnished  a  clue  to  a  just  or 
rational  judgment. 

Gentlemen,  this  religious  regard  for  the  liberty 


526  SPEECH   OF   MR.    ERSKINE   ON   THE 

of  the  subject,  against  constructive  treason,  is  well 
illustrated  by  Dr.  Johnson,  the  great  author  of 
our  English  Dictionary,  a  man  remarkable  for  his 
love  of  order,  and  for  high  principles  of  govern- 
ment, but  who  had  the  wisdom  to  know  that  the 
great  end  of  government,  in  all  its  forms,  is  the 
security  of  liberty  and  life  under  the  law.  This 
man,  of  masculine  mind,  though  disgusted  at  the 
disorder  which  Lord  George  Gordon  created,  felt 
a  triumph  in  his  acquittal,  and  exclaimed,  as  we 
learn  from  Mr.  Boswell,  "I  hate  Lord  George 
Gordon,  but  I  am  glad  he  was  not  convicted  of 
this  constructive  treason ;  for,  though  I  hate  him, 
I  love  my  country  and  myself."  This  extraordi- 
nary man,  no  doubt,  remembered,  with  Lord  Hale, 
that,  when  the  law  is  broken  down,  injustice  knows 
no  bounds,  but  runs  as  far  as  the  wit  and  invention 
of  accusers,  or  the  detestation  of  persons  accused, 
will  carry  it.  You  will  pardon  this  almost  perpetual 
recurrence  to  these  considerations;  but  the  present 
is  a  season  when  I  have  a  right  to  call  upon  you 
by  every  thing  sacred  in  humanity  and  justice;  by 
every  principle  which  ought  to  influence  the  heart 
of  man,  to  consider  the  situation  in  which  I  stand 
before  you.  I  stand  here  for  a  poor,  unknown, 
unprotected  individual,  charged  with  a  design  to 
subvert  the  government  of  the  country,  and  the 
dearest  rights  of  its  inhabitants ;  a  charge  which 
has  collected  against  him  a  force  sufficient  to  crush 


TRIAL  OF   THOMAS   HARDY.  527 

to  pieces  any  private  man ;  the  whole  weight  of 
the  Crown  presses  u]>on  him;  Parliament  has  been 
sitting  upon  ex-parte  evidence  for  months  together ; 
and  rank  and  property  is  associated,  from  one  end 
of  the  kingdom  to  the  other,  to  avert  the  supposed 
consequences  of  the  treason.  I  am  making  no 
complaint  of  this ;  but  surely  it  is  an  awful  sum- 
mons to  impartial  attention ;  surely  it  excuses  me 
for  so  often  calling  upon  your  integrity  and  firm- 
ness to  do  equal  justice  between  the  Crown,  so 
supported,  and  an  unhappy  prisoner,  so  unpro- 
tected. 

Gentlemen,  I  declare  that  I  am  utterly  astonish- 
ed, on  looking  at  the  clock,  to  find  how  long  I 
have  been  speaking;  and  that,  agitated  and  dis- 
tressed as  I  am,  I  have  yet  strength  enough 
remaining  for  the  remainder  of  my  duty ;  at  every 
peril  of  my  health  it  shall  be  exerted  ;  for  although, 
if  this  cause  should  miscarry,  I  know  I  shall  have 
justice  done  me  for  the  honesty  of  my  intentions; 
yet  what  is  that  to  the  public  and  posterity? 
What  is  it  to  them,  when,  if  upon  this  evidence 
there  can  stand  a  conviction  for  high  treason,  it  is 
plain  that  no  man  can  be  said  to  have  a  life  which 
is  his  own  ?  For  how  can  he  possibly  know  by 
what  engines  it  may  be  snared,  or  from  what 
unknown  sources  it  may  be  attacked  and  overpow- 
ered? Such  a  monstrous  precedent  would  be  as 
ruinous  to  the  King  as  to  his  subjects.  We  are  in 


528     SPEECH  OF  ME.  EESKINE  ON  THE 

a  crisis  of  our  affairs ;  which,  putting  justice  out 
of  the  question,  calls  in  sound  policy  for  the  great- 
est prudence  and  moderation.  At  a  time  when 
other  nations  are  disposed  to  subvert  their  estab- 
lishments, let  it  be  our  wisdom  to  make  the  subject 
feel  the  practical  benefits  of  our  own ;  let  us  seek 
to  bring  good  out  of  evil;  the  distracted  inhabit- 
ants of  the  world  will  fly  to  us  for  sanctuary, 
driven  out  of  their  countries  from  the  dreadful 
consequences  of  not  attending  to  seasonable  reforms 
in  government;  victims  to  the  folly  of  suffering 
corruptions  to  continue,  till  the  whole  fabric  of 
society  is  dissolved  and  tumbles  into  ruin ;  landing 
upon  our  shores,  they  will  feel  the  blessings  of 
security,  and  they  will  discover  in  what  it  consists ; 
they  will  read  this  trial,  and  their  hearts  will  pal- 
pitate at  your  decision ;  they  will  say  to  one 
another,  and  their  voices  will  reach  to  the  ends  of 
the  earth  :  May  the  constitution  of  England  endure 
forever !  the  sacred  and  yet  remaining  sanctuary 
of  the  oppressed ;  here,  and  here  only,  the  lot  of 
man  is  cast  in  security.  What  though  authority, 
established  for  the  ends  of  justice,  may  lift  itself 
up  against  it ;  what  though  the  House  of  Commons 
itself  should  make  an  ex-par te  declaration  of  guilt ; 
what  though  every  species  of  art  should  be  em- 
ployed to  entangle  the  opinions  of  the  people, 
which  in  other  countries  would  be  inevitable  de- 
struction ;  yet  in  England,  in  enlightened  England, 


TRIAL  OF  THOMAS   HARDY.  529 

all  this  will  not  pluck  a  hair  from  the  head  of 
innocence;  the  jury  will  still  look  steadfastly  to 
the  law,  as  the  great  polar  star,  to  direct  them  in 
their  course;  as  prudent  men  they  will  set  no 
example  of  disorder,  nor  pronounce  a  verdict  of 
censure  on  authority,  or  of  approbation  or  disap- 
probation beyond  their  judicial  province;  but,  on 
the  other  hand,  they  will  make  no  political  sacrifice, 
but  deliver  a  plain,  honest  man,  from  the  toils  of 
injustice.  When  your  verdict  is  pronounced,  this 
will  be  the  judgment  of  the  world;  and  if  any 
amongst  ourselves  are  alienated  in  their  affections 
to  government,  nothing  will  be  so  likely  to  reclaim 
them.  They  will  say :  Whatever  we  have  lost  of 
our  control  in  Parliament,  we  have  yet  a  sheet- 
anchor  remaining  to  hold  the  vessel  of  the  state 
amidst  contending  storms;  we  have  still,  thank 
God,  a  sound  administration  of  justice  secured  to 
us,  in  the  independence  of  the  judges,  in  the  rights 
of  enlightened  juries,  and  in  the  integrity  of  the 
bar ;  ready  at  all  times,  and  upon  every  possible 
occasion,  whatever  may  be  the  consequences  to 
themselves,  to  stand  forward  in  defence  of  the 
meanest  man  in  England,  when  brought  for  judg- 
ment before  the  laws  of  the  country. 

To   return  to  this   Scotch   convention.      Their 

papers   were  all  seized    by   government      What 

their  proceedings  were,  they  best  know;   we  can 

only  see  what  parts  they  choose  to  show  us ;  but, 

34  B 


530  SPEECH   OF   ME.    EESKINE   ON   THE 

from  what  we  have  seen,  does  any  man  seriously 
believe,  that  this  meeting  at  Edinburgh  meant  to 
assume  and  to  maintain  by  force  all  the  functions 
and  authorities  of  the  state?  Is  the  thing  within 
the  compass  of  human  belief?  If  a  man  were 
offered  a  dukedom,  and  twenty  thousand  pounds 
a  year  for  trying  to  believe  it,  he  might  say  he 
believed  it,  as  what  will  not  man  say  for  gold  and 
honors?  but  he  never,  in  fact,  could  believe  that 
this  Edinburgh  meeting  was  a  Parliament  for 
Great  Britain;  how,  indeed,  could  he,  from  the 
proceedings  of  a  few  peaceable,  unarmed  men,  dis- 
cussing, in  a  constitutional  manner,  the  means  of 
obtaining  a  reform  in  Parliament?  and  who,  to 
maintain  the  club,  or  whatever  you  choose  to  call 
it,  collected  a  little  money  from  people  who  were 
well  disposed  to  the  cause,  a  few  shillings  one  day, 
and  perhaps  as  many  pence  another?  I  think,  as 
far  as  I  could  reckon  it  up,  when  the  report,  from 
this  great  committee  of  supply  was  read  to  you,  I 
counted  that  there  had  been  raised,  in  the  first 
session  of  this  Parliament,  fifteen  pounds,  from 
which,  indeed,  you  must  deduct  two  bad  shillings, 
which  are  literally  noticed  in  the  account.  Is  it 
to  be  endured,  gentlemen,  that  men  should  gravely 
say,  that  this  body  assumes  to  itself  the  offices  of 
Parliament?  that  a  few  harmless  people,  who  sat, 
as  they  profess,  to  obtain  a  full  representation  of 
the  people,  were  themselves,  even  in  their  own 


TRIAL  OF  THOMAS   HARDY.  531 

imaginations,  the  complete  representation  which 
they  sought  for  ?  Why  should  they  sit  from  day 
to  day  to  consider  how  they  might  obtain  what 
they  had  already  got?  If  their  object  was  an 
universal  representation  of  the  whole  people,  how  is 
it  credible  they  could  suppose  that  universal  repre- 
sentation to  exist  in  themselves — in  the  represen- 
tatives of  a  few  societies,  instituted  to  obtain  it  for 
the  country  at  large  ?  If  they  were  themselves 
the  nation,  why  should  the  language  of  every 
resolution  be,  that  reason  ought  to  be  their  grand 
engine  for  the  accomplishment  of  their  object,  and 
should  be  directed  to  convince  the  nation  to  speak 
to  Parliament  in  a  voice  that  must  be  heard  ?  The 
proposition,  therefore,  is  too  gross  to  cram  down 
the  throats  of  the  English  people,  and  this  is  the 
prisoner's  security.  Here,  again,  he  feels  the  ad- 
vantage of  our  free  administration  of  justice;  this 
proposition,  on  which  so  much  depends,  is  not  to 
be  reasoned  upon  on  parchment,  to  be  delivered 
privately  to  magistrates  for  private  judgment;  no, 
he  has  the  privilege  of  appealing  aloud,  as  he  now 
appeals  by  me,  to  an  enlightened  assembly,  full  of 
eyes,  and  ears,  and  intelligence,  where  speaking  to 
a  jury  is,  in  a  manner,  speaking  to  a  nation  at 
large,  and  flying  for  sanctuary  to  its  universal 
justice. 

Gentlemen,  the  very  work  of  Mr.  Paine,  under 
the  banners  of  which  this  supposed  rebellion  was 


532  SPEECH   OF   MR.    ERSKINE   ON   THE 

set  on  foot,  refutes  the  charge  it  was  brought  for- 
ward to  support;  for  Mr.  Paine,  in  his  preface, 
and  throughout  his  whole  work,  reprobates  the  use 
of  force  against  the  most  evil  governments;  the 
contrary  was  never  imputed  to  him.  If  his  book 
had  been  written  in  pursuance  of  the  design  of 
force  and  rebellion,  with  which  it  is  now  sought  to 
be  connected,  he  would,  like  the  prisoners,  have 
been  charged  with  an  overt  act  of  high  treason ; 
but  such  a  proceeding  was  never  thought  of.  Mr. 
Paine  was  indicted  for  a  misdemeanor,  and  the 
misdemeanor  was  argued  to  consist  not  in  the  false- 
hood that  a  nation  has  no  right  to  choose  or  alter 
its  government,  but  in  seditiously  exciting  the 
nation,  without  cause,  to  exercise  that  right.  A 
learned  lord  (Lord  Chief  Baron  McDonald),  now 
on  this  bench,  addressed  the  jury  as  Attorney-Gen- 
eral upon  this  principle;  his  language  was  this: 
The  question  is  not  what  the  people  have  a  right 
to  do,  for  the  people  are,  undoubtedly,  the  founda- 
tion and  origin  of  all  government ;  but  the  charge 
is,  for  seditiously  calling  upon  the  people,  without 
cause  or  reason,  to  exercise  a  right  which  would 
be  sedition,  supposing  the  right  to  be  in  them ;  for 
though  the  people  might  have  a  right  to  do  the 
thing  suggested,  and  though  they  are  not  excited 
to  doing  it  by  force  and  rebellion,  yet,  as  the  sug- 
gestion goes  to  unsettle  the  state,  the  propagation 
of  such  doctrines  is  seditious.  There  is  no  other 


TBIAL  OF   THOMAS   HARDY.  533 

way,  undoubtedly,  of  describing  that  charge.  I 
am  not  here  entering  into  the  application  of  it  to 
Mr.  Paine,  whose  counsel  I  was,  and  who  has  been 
tried  already.  To  say  that  the  people  have  a  right 
to  change  their  government,  is  indeed  a  truism ; 
everybody  knows  it,  and  they  exercise  the  right ; 
otherwise  the  King  could  not  have  had  his  estab- 
lishment amongst  us.  If,  therefore,  I  stir  up 
individuals  to  oppose  by  force  the  general  will, 
seated  in  the  government,  it  may  be  treason  ;  but 
to  induce  changes  in  a  government,  by  exposing 
to  a  whole  nation  its  errors  and  imperfections,  can 
have  no  bearing  upon  such  an  offence ;  the  utmost 
which  can  be  made  of  it  is  a  misdemeanor,  and 
that,  too,  depending  wholly  upon  the  judgment 
which  the  jury  may  form  of  the  intention  of  the 
writer.  The  courts,  for  a  long  time,  indeed, 
assumed  to  themselves  the  province  of  deciding 
upon  this  intention,  as  a  matter  of  law,  conclu- 
sively inferring  it  from  the  act  of  publication ;  I 
say  the  courts  assumed  it,  though  it  was  not  the 
doctrine  of  Lord  Mansfield,  but  handed  down  to 
him  from  the  precedents  of  judges  before  his  time  ; 
but  even  in  that  case,  though  the  publication  was 
the  crime,  not,  as  in  this  case,  the  intention,  and 
though  the  quality  of  the  thing  charged,  when  not 
rebutted  by  the  evidence  for  the  defendant,  had  so 
long  been  considered  to  be  a  legal  inference4,  y.  t 
the  legislature,  to  support  the  province  of  tin- 


534  SPEECH    OF    ME.    ERSKINE    ON    THE 

jury,  and  in  tenderness  for  liberty,  has  lately 
altered  the  law  upon  this  important  subject.  If, 
therefore,  we  were  not  assembled,  as  we  are,  to 
consider  of  the  existence  of  high  treason  against 
the  King's  life,  but  only  of  a  misdemeanor  for  sedi- 
tiously disturbing  his  title  and  establishment,  by 
the  proceedings  for  a  reform  in  Parliament,  I 
should  think  the  Crown,  upon  the  very  principle 
which,  under  the  libel  law,  must  now  govern  such 
a  trial,  quite  as  distant  from  its  mark ;  because,  in 
my  opinion,  there  is  no  way  by  which  His  Majesty's 
title  can  more  firmly  be  secured,  or  by  which 
(above  all,  in  our  times)  its  permanency  can  be 
better  established,  than  by  promoting  a  more  full 
,and  equal  representation  of  the  people,  by  peace- 
able means;  and  by  what  other  means  has  it  been 
sought,  in  this  instance,  to  be  promoted? 

Gentlemen,  when  the  members  of  this  conven- 
tion were  seized,  did  they  attempt  resistance? 
Did  they  insist  upon  their  privileges  as  subjects 
under  the  laws,  or  as  a  Parliament  enacting  laws 
for  others  ?  If  they  had  said  or  done  anything  to 
give  color  to  such  an  idea,  there  needed  no  spies 
to  convict  them;  the  Crown  could  have  given 
ample  indemnity  for  evidence  from  amongst  them- 
selves; the  societies  consisted  of  thousands  and 
thousands  of  persons,  some  of  whom,  upon  any 
calculation  of  human  nature,  might  have  been  pro- 
duced; the  delegates,  who  attended  the  meetings, 


TRIAL  OF  THOMAS   HARDY. 

could  not  be  supposed  to  have  met  with  a  different 
intention  from  those  who  sent  them ;  and,  if  the 
answer  to  that  is,  that  the  constituents  are  involved 
in  the  guilt  of  their  representatives,  we  get  back 
to  the  monstrous  position  which  I  observed  you 
before  to  shrink  back  from,  with  visible  horror, 
when  I  stated  it;  namely,  the  involving  in  the 
fate  and  consequence  of  this  single  trial  every  man 
who  corresponded  with  these  societies,  or  who,  as  a 
member  of  societies  in  any  part  of  the  kingdom, 
consented  to  tbe  meeting  which  was  assembled,  or 
which  was  in  prospect ;  but,  I  thank  God,  I  have 
nothing  to  fear  from  such  hydras,  when  I  see 
before  me  such  just  and  honorable  men  to  hold 
the  balance  of  justice. 

Gentlemen,  the  dissolution  of  this  Parliament 
speaks  as  strong  a  language  as  its  conduct  when 
sitting.  How  was  it  dissolved  ?  When  the  magis- 
trates entered,  Mr.  Skirving  was  in  the  chair, 
which  he  refused  to  leave;  he  considered  and 
asserted  his  conduct  to  be  legal,  and,  therefore, 
informed  the  magistrate  he  must  exercise  his 
authority,  that  the  dispersion  might  appear  to  be 
involuntary,  and  that  the  subject,  disturbed  in  his 
rights,  might  be  entitled  to  his  remedy.  The 
magistrate  on  this  took  Mr.  Skirving  by  the 
shoulder,  who  immediately  obeyed ;  the  chair  was 
quitted  in  a  moment,  and  this  great  Parliament 
broke  up.  What  was  the  effect  of  all  this  pro- 


536  SPEECH    OF    MR.    EKSKINE   ON    THE 

ceeding  at  the  time,  when  whatever  belonged  to 
it  must  have  been  best  understood  ?  Were  any 
of  the  parties  indicted  for  high  treason  ?  Were 
they  indicted  even  for  a  breach  of  the  peace  in 
holding  the  convention?  None  of  these  things. 
The  law  of  Scotland,  arbitrary  as  it  is,  was  to  be 
disturbed  to  find  a  name  for  their  offence,  and  the 
rules  of  trial  to  be  violated  to  convict  them  ;  they 
were  denied  their  challenges  to  their  jurors,  and 
other  irregularities  were  introduced,  so  as  to  be  the 
subject  of  complaint  in  the  House  of  Commons. 
Gentlemen,  in  what  I  am  saying,  I  am  not  stand- 
ing up  to  vindicate  all  that  they  published  during 
these  proceedings,  more  especially  those  which 
were  written  in  consequence  of  the  trials  I  have 
just  alluded  to ;  but  allowance  must  be  made  for 
a  state  of  heat  and  irritation ;  they  saw  men  whom 
they  believed  to  be  persecuted  for  what  they  be- 
lieved to  be  innocent ;  they  saw  them  the  victims 
of  sentences  which  many  would  consider  as  equi- 
valent to,  if  not  worse  than,  judgment  of  treason  ; 
sentences  which,  at  all  events,  had  never  existed 
before,  and  such  as,  I  believe,  never  will  again 
with  impunity.  But  since  I  am  on  the  subject  of 
intention,  I  shall  conduct  myself  with  the  same 
moderation  which  I  have  been  prescribing ;  I  will 
cast  no  aspersions  but  shall  content  myself  with 
lamenting  that  these  judgments  were  productive 
of  consequences,  which  rarely  follow  from  authority 


TRIAL  OF  THOMAS   HARDY.  537 

discreetly  exercised.  How  easy  is  it  then  to  dis- 
pose of  as  much  of  the  evidence  as  consumed  half 
a  day  in  the  anathemas  against  the  Scotch  judges  ! 
It  appears  that  they  came  to  various  resolutions 
concerning  them ;  some  good,  some  bad,  and  all 
of  them  irregular.  Amongst  others,  they  com- 
pare them  to  Jefferies,  and  wish  that  they,  who 
imitate  his  example,  may  meet  his  fate.  What 
then?  Irreverent  expressions  against  judges  are 
not  acts  of  high  treason  !  If  they  had  assembled 
round  the  court  of  justiciary,  and  hanged  them  in 
the  execution  of  their  offices,  it  would  not  have 
been  treason  within  the  statute.  I  am  no  advocate 
for  disrespect  to  judges,  and  think  that  it  is  dan- 
gerous to  the  public  order ;  but,  putting  aside  the 
insult  upon  the  judges  now  in  authority,  the  repro- 
bation of  Jefferies  is  no  libel,  but  an  awful  and 
useful  memento  to  wicked  men.  Lord  Chief  Justice 
Jefferies  denied  the  privilege  of  English  law  to  an 
innocent  man.  He  refused  it  to  Sir  Thomas  Arm- 
strong, who  in  vain  pleaded,  in  bar  of  his  outlawry, 
that  he  was  out  of  the  realm  when  he  was  exacted 
(an  objection  so  clear,  that  it  was  lately  taken  for 
granted  in  the  case  of  Mr.  Purefoy).  The  daughter 
of  this  unfortunate  person,  a  lady  of  honor  and 
quality,  came  publicly  into  court  to  supplicate  for 
her  father ;  and  what  were  the  effects  of  her  su]>- 
plications,  and  of  the  law  in  the  mouth  of  the 
prisoner  ?  "  Sir  Thomas  Armstrong,"  said  Jefferies, 


538     SPEECH  OF  ME.  ERSKINE  ON  THE 

"  you  may  amuse  yourself  as  much  as  you  please 
•with  the  idea  of  your  innocence,  but  you  are  to  be 
hanged  next  Friday ;"  and,  upon  the  natural  ex- 
clamation of  a  daughter  at  this  horrible  outrage 
against  her  parent,  he  said,  "  Take  that  woman 
out  of  court;"  which  she  answered  by  a  prayer, 
that  God  Almighty's  judgments  might  light  upon 
him.  Gentlemen,  they  did  light  upon  him ;  and 
when,  after  his  death,  which  speedily  followed  this 
transaction,  the  matter  was  brought  before  the 
House  of  Commons,  under  that  glorious  revolution 
which  is  asserted  throughout  the  proceedings 
before  you,  the  judgment  against  Sir  Thomas 
Armstrong  was  declared  to  be  a  murder  under 
color  of  justice !  Sir  Robert  Sawyer,  the  Attorney- 
General,  was  expelled  the  House  of  Commons  for 
his  misdemeanor  in  refusing  the  writ  of  error,  and 
the  executors  of  Jefferies  were  commanded  to  make 
compensation  to  the  widow  and  the  daughter  of 
the  deceased.  These  are  great  monuments  of 
justice;  and,  although  I  by  no  means  approve 
of  harsh  expressions  against  authority,  which  tend 
to  weaken  the  holdings  of  society,  yet  let  us  not 
go  beyond  the  mark  in  our  restraints,  nor  suppose 
that  men  are  dangerously  disaffected  to  the  gov- 
ernment, because  they  feel  a  sort  of  pride  and 
exultation  in  events,  which  constitute  the  dignity 
and  glory  of  their  country. 

Gentlemen,  this  resentment  against  the  proceed- 


TRIAL  OF  THOMAS  HARDY.  539 

ings  of  the  courts  in  Scotland,  was  not  confined  to 
those  who  were  the  objects  of  them  ;  it  was  not 
confined  even  to  the  friends  of  a  reform  in  Parlia- 
ment— a  benevolent  public,  in  both  parts  of  the 
island,  joined  them  in  the  complaint ;  and  a  gen- 
tleman of  great  moderation,  and  a  most  inveterate 
enemy  to  parliamentary  reform,  as  thinking  it  not 
an  improvement  of  the  government,  but  neverthe- 
less  a  lover  of  his  country  and  its  insulted  justice, 
made  the  convictions  of  the  delegates  the  subject 
of  a  public  inquiry ;  I  speak  of  my  friend,  Mr. 
William  Adam,  who  brought  these  judgments  of 
the  Scotch  judges  before  the  House  of  Commons, 
arraigned  them  as  contrary  to  law,  and  proposed 
to  reverse  -them  by  the  authority  of  Parliament. 
Let  it  not  then  be  matter  of  wonder,  that  these 
poor  men,  who  were  the  immediate  victims  of  this 
injustice,  and  who  saw  their  brethren  expelled 
from  their  country  by  an  unprecedented  and  ques- 
tionable judgment,  should  feel  like  men  on  the 
subject,  and  express  themselves  as  they  felt. 

Gentlemen,  amidst  the  various  distresses  and 
embarrassments  which  attend  my  present  situation, 
it  is  a  great  consolation  that  I  have  marked  from 
the  beginning  your  vigilant  attention  and  your 
capacity  to  understand  ;  it  is,  therefore,  with  tli" 
utmost  confidence  that  I  ask  you  a  few  plain  ques- 
tions, arising  out  of  the  whole  of  these  Scotch  pro- 
ceedings. In  the  first  place,  then,  do  you  believe 


540  SPEECH    OF    MR.    ERSKINE   ON   THE 

it  to  be  possible,  that,  if  these  men  had  really  pro- 
jected the  convention  as  a  traitorous  usurpation  of 
the  authorities  of  Parliament,  they  would  have 
invited  the  friends  of  the  people,  in  Frith  street, 
to  assist  them,  when  they  knew  that  this  society 
was  determined  not  to  seek  the  reform  of  the  con- 
stitution, but  by  means  that  were  constitutional, 
and  from  whom  they  could  neither  hope  for  sup- 
port nor  concealment  of  evil  purposes  ?  I  ask  you 
next,  if  their  objects  had  been  traitorous,  would 
they  have  given  them,  without  disguise  or  color, 
to  the  public  and  to  the  government,  in  every  com- 
mon newspaper  ?  And  yet  it  is  so  far  from  being 
a  charge  against  them,  that  they  concealed  their 
objects  by  hypocrisy  or  guarded  conduct,  that  I 
have  been  driven  to  admit  the  justice  of  the  com- 
plaint against  themv  for  unnecessary  inflammation 
and  exaggeration.  I  ask  you  further,  whether,  if 
the  proceedings,  thus  published  and  exaggerated, 
had  appeared  to  government,  who  knew  every- 
thing belonging  to  them,  in  the  light  they  repre- 
sent them  to  you  to-day,  they  could  possibly  have 
slept  over  them  with  such  complete  indifference 
and  silence?  For  it  is  notorious,  that  after  this 
convention  had  been  held  at  Edinburgh,  after,  in 
short,  everything  had  been  said,  written,  and  tran- 
sacted, on  which  I  am  now  commenting,  and  after 
Mr.  Paine's  book  had  been  for  above  a  year  in 
universal  circulation,  aye,  up  to  the  very  day  when 


TRIAL  OF  THOMAS   HARDY.  541 

Mr.  Grey  gave  notice,  in  the  House  of  Commons, 
of  the  intention  of  the  Friends  of  the  People  for 
a  reform  in  Parliament,  there  was  not  even  a  single 
indictment  on  the  file  for  a  misdemeanor ;  but  from 
that  moment,  when  it  was  seen  that  the  cause  was 
not  beat  down  or  abandoned,  the  proclamation 
made  its  appearance,  and  all  the  proceedings  that 
followed  had  their  birth.  I  ask  you,  lastly,  gentle- 
men, whether  it  be  in  human  nature,  that  a  few 
unprotected  men,  conscious  in  their  own  minds, 
that  they  had  been  engaged  and  detected  in  a  de- 
testable rebellion  to  cut  off  the  King,  to  destroy 
the  administration  of  justice,  and  to  subvert  the 
whole  fabric  of  the  government,  should  turn  round 
upon  their  country,  whose  ruin  they  had  projected, 
and  whose  most  obvious  justice  attached  on  them 
complaining,  forsooth,  that  their  delegates,  taken 
by  magistrates,  in  the  very  act  of  high  treason,  had 
been  harshly  and  illegally  interrupted  in  a  merito- 
rious proceeding?  The  history  of  mankind  never 
furnished  an  instance,  nor  ever  will,  of  such  extrav- 
agant, preposterous,  and  unnatural  conduct !  No, 
no,  gentlemen  ;  all  their  hot  blood  was  owing  to 
their  firm  persuasion,  dictated  by  conscious  inno- 
cence, that  the  conduct  of  their  delegates  had  been 
legal,  and  might  be  vindicated  against  the  magis- 
trates who  obstructed  them ;  in  that  they  might 
be  mistaken ;  I  am  not  arguing  that  point  at  pres- 
ent; if  they  are  hereafter  indicted  for  a  misde- 


542  SPEECH   OF   ME.    EKSKINE   ON   THE 

meaner,  and  I  am  counsel  in  that  cause,  I  will  then 
tell  you  what  I  think  of  it ;  sufficient  for  the  day 
is  the  good  or  evil  of  it;  it  is  sufficient,  for  the 
present  one,  that  the  legality  or  illegality  of  the 
business  has  no  relation  to  the  crime  that  is  im- 
puted to  the  prisoner. 

The  next  matter  that  is  alleged  against  the 
authors  of  the  Scotch  convention,  and  the  societies 
which  supported  it,  is,  their  having  sent  addresses 
of  friendship  to  the  convention  of  France.  These 
addresses  are  considered  to  be  a  decisive  proof  of 
republican  combination,  verging  closely  in  them- 
selves upon  an  overt  act  of  treason.  Gentlemen, 
if  the  dates  of  these  addresses  are  attended  to, 
which  come  no  lower  down  than  November,  1792, 
we  have  only  to  lament  that  they  are  but  the  acts 
of  private  subjects,  and  that  they  were  not  sanc- 
tioned by  the  state  itself.  The  French  nation, 
about  that  period,  under  their  new  constitution,  or 
under  their  new  anarchy,  call  it  what  you  will, 
were  nevertheless  most  anxiously  desirous  of  main- 
taining peace  with  this  country.  But  the  King  was 
advised  to  withdraw  his  ambassador  from  France, 
upon  the  approaching  catastrophe  of  its  most 
unfortunate  prince;  an  event  which,  however  to 
be  deplored,  was  no  justifiable  cause  of  offence  to 
Great  Britain.  France  desired  nothing  but  the 
regeneration  of  her  own  government ;  and  if  she 
mistook  the  road  to  her  prosperity,  what  was  that 


TRIAL  OF   THOMAS   HARDY.  543 

to  us  ?  But  it  was  alleged  against  her  in  Parlia- 
ment, that  she  had  introduced  spies  amongst  us, 
and  held  correspondence  with  disaffected  ]>ersons, 
for  the  destruction  of  our  constitution ;  this  was 
the  charge  of  our  minister,  and  it  was,  therefore, 
held  to  be  just  and  necessary,  for  the  safety  of  the 
country,  to  hold  France  at  arm's  length,  and  to 
avoid  the  very  contagion  of  contact  with  her  at 
the  risk  of  war.  But,  gentlemen,  this  charge 
against  France  was  thought  by  many  to  be  sup- 
ported by  no  better  proofs  than  those  against  the 
prisoner.  In  the  public  correspondence  of  the 
ambassador  from  the  French  King,  and  upon  his 
death,  as  minister  from  the  convention,  with  His 
Majesty's  secretary  of  state,  documents  which  lie 
upon  the  table  of  the  House  of  Commons,  and 
which  may  be  made  evidence  in  the  cause,  the 
executive  council  repelled  with  indignation  all  the 
imputations  which  to  this  very  hour  are  held  out 
as  the  vindications  of  quarrel.  "If  there  be  such 
persons  in  England,"  says  Monsieur  Chauvelin, 
"has  not  England  laws  to  punish  them?  France 
disavows  them;  such  men  are  not  Frenchmen." 
The  same  correspondence  conveys  the  most  solemn 
assurances  of  friendship  down  to  the  very  end  of 
the  year  1792,  a  period  subsequent  to  all  the  cor- 
respondence and  addresses  complained  of.  Whether 
these  assurances  were  faithful  or  otherwise,  whether 
it  would  have  been  prudent  to  have  depended  on 


544  SPEECH   OF   ME.    EKSKINE   ON   THE 

them  or  otherwise — whether  the  war  was  advis- 
able or  unadvisable — are  questions  over  which  we 
have  no  jurisdiction;  I  only  desire  to  bring  to  your 
recollection  that  a  man  may  be  a  friend  to  the 
rights  of  humanity  and  to  the  imprescriptible 
rights  of  social  man,  which  is  now  a  term  of 

O  ' 

derision  and  contempt,  that  he  may  feel  to  the 
very  soul  for  a  nation  beset  by  the  sword  of  des- 
pots, and  yet  be  a  lover  of  his  own  country  and 
its  constitution. 

Gentlemen,  the  same  celebrated  person,  of  whom 
I  have  had  occasion  to  speak  so  frequently,  is  the 
best  and  brightest  illustration  of  this  truth.  Mr. 
Burke,  indeed,  went  a  great  deal  further  than  re- 
quires to  be  pressed  into  the  present  argument; 
for  he  maintained  the  cause  of  justice  and  of  truth, 
against  all  the  perverted  authority  and  rash 
violence  of  his  country,  and  expressed  the  feelings 
of  a  Christian  and  a  patriot  in  the  very  heat  of  the 
American  war ;  boldly  holding  forth  our  victories 
as  defeats,  and  our  successes  as  calamities  and 
disgraces.  "It  is  not  instantly,"  said  Mr.  Burke, 
"that  I  can  be  brought  to  rejoice,  when  I  hear  of 
the  slaughter  and  captivity  of  long  lists  of  those 
names  which  have  been  familliar  to  my  ears 
from  my  infancy,  and  to  rejoice  that  they  have 
fallen  under  the  sword  of  strangers,  whose  barba- 
rous appellations  I  scarcely  know  how  to  pronounce. 
The  glory  acquired  at  the  White  Plains,  by  Col- 


TRIAL  OF  THOMAS   HARDY.  545 

onel  Raille,  has  no  charms  for  me;  and  I  fairly 
acknowledge,  that  I  have  not  yet  learned  to  delight 
in  finding  Fort  Kniphausen  in  the  heart  of  the 
British  dominions."  If  this  had  been  said  or 
written  by  Mr.  Yorke,  at  Sheffield,  or  by  any 
other  member  of  these  societies,  heated  with  wine 
at  the  Globe  Tavern,  it  would  have  been  trumpet- 
ed forth  as  decisive  evidence  of  a  rebellious  spirit, 
rejoicing  in  the  downfall  of  his  country;  yet  the 
great  author  whose  writings  I  have  borrowed 
from,  approved  himself  to  be  the  friend  of  this 
nation  at  that  calamitous  crisis,  and  had  it  pleased 
God  to  open  the  understandings  of  our  rulers,  his 
wisdom  might  have  averted  the  storms  that  are 
now  thickening  around  us.  We  must  not,  there- 
fore, be  too  severe  in  our  strictures  upon,  the 
opinions  and  feelings  of  men  as  they  regard  such 
mighty  public  questions.  The  interests  of  a  nation 
may  often  be  one  thing,  and  the  interests  of  its 
government  another;  but  the  interests  of  those 
who  hold  government  for  the  hour  is  at  all  times 
different  from  either.  At  the  time  many  of  the 
papers  before  you  were  circulated  on  the  subject 
of  the  war  with  France,  many  of  the  best  :nnl 
wisest  men  in  this  kingdom  began  to  be  driven  In- 
cur situation  to  these  melancholy  reflections;  ami 
thousands  of  persons,  the  most  firmly  attaclml  to 
the  principles  of  our  constitution,  and  who  n 

members  of  any  of  these  societies,  consuK-n  I. 
35  B 


546  SPEECH   OF   ME.   EUSKINE  ON  THE 

and  still  consider,  Great  Britain  as  the  aggressor 
against  France;  they  considered,  and  still  consider, 
that  she  had  a  right  to  choose  a  government  for 
herself,  and  that  it  was  contrary  to  the  first 
principles  of  justice,  and,  if  possible,  still  more 
repugnant  to  the  genius  of  our  own  free  constitu- 
tion, to  combine  with  despots  for  her  destruction  ; 
and  who  knows  but  that  the  external  pressure 
upon  France  may  have  been  the  cause  of  that  un- 
heard-of state  of  society  which  we  complain  of? 
Who  knows,  but  that,  driven  as  she  has  been  to 
exertions  beyond  the  ordinary  vigor  of  a  nation,  it 
has  not  been  the  parent  of  that  unnatural  and 
giant  strength  which  threatens  the  authors  of  it 
with  perdition?  These  are  melancholy  considera- 
tions, but  they  may  reasonably,  and  at  all  events, 
be  lawfully  entertained.  We  owe  obedience  to 
government  in  our  actions,  but  surely  our  opinions 
are  free. 

Gentlemen,  pursuing  the  order  of  time,  we  are 
arrived  at  length  at  the  proposition  to  hold  another 
convention,  which,  with  the  supposed  support  of  it 
by  force,  are  the  only  overt  acts  of  high  treason 
charged  upon  this  record.  For,  strange  as  it  may 
appear,  there  is  no  charge  whatever  before  you  of 
any  one  of  those  acts  or  writings,  the  evidence  of 
which  consumed  so  many  days  in  reading,  and 
which  has  already  nearly  consumed  my  strength  in 
only  passing  them  in  review  before  you.  If  every 


TRIAL  OF   THOMAS   HARDY.  547 

line  and  letter  of  all  the  writings  I  have  been  com- 
menting upon  were  admitted  to  be  traitorous 
machinations,  and  if  the  convention  in  Scotland 
was  an  open  rebellion,  it  is  conceded  to  be  foreign 
to  the  present  purpose,  unless  M  Buch  criminality 
in  them  might  show  the  views  and  objects  of  the 
persons  engaged  in  them  ;  on  that  principle  only 
the  court  has  over  and  over  again  decided  the 
evidence  of  them  to  be  admissible;  and  on  the 
same  principle  I  have  illustrated  them  in  their 
order  as  they  happened,  that  I  might  lead  the 
prisoner  in  your  view  up  to  the  very  point  and 
moment  when  the  treason  is  supposed  to  have 
burst  forth  into  the  overt  act  for  which  he  is  ar- 
raigned before  you. 

The  transaction  respecting  this  second  conven- 
tion, which  constitutes  the  principal,  or  more 
properly  the  only  overt  act  in  the  indictment,  lies 
in  the  narrowest  compass,  and  is  clouded  with  no 
ambiguity.  I  admit  freely  every  act  which  is 
imputed  to  the  prisoner,  and  listen  not  so  much 
with  fear  as  with  curiosity  and  wonder,  to  the 
treason  sought  to  l>e  connected  with  it. 

You  will  recollect  that  the  first  motion  towards 
the  holding  of  a  second  convention,  originated  in  a 
letter  to  the  prisoner  from  a  country  correspondent 
in  which  the  legality  of  the  former  was  vindicated, 
and  its  dispersion  lamented ;  this  letter  was  an- 


548     SPEECH  OF  ME.  EESKINE  ON  THE 

swered  on  the  27th  of  March,  1794,  and  was  read 
to  you  in  the  Crown's  evidence  in  these  words : 

«  March  27,  1794. 

"  CITIZEN,  /  am  directed  by  the  London  Cor- 
responding Society  to  transmit  the  following 
resolutions  to  the  Society  for  Constitutional  Infor- 
mation, and  to  request  the  sentiments  of  that 
society  respecting  the  important  measures  which 
the  present  juncture  of  affairs  seems  to  require. 

"  The  London  Corresponding  Society  conceives 
that  the  moment  is  arrived  when  a  full  and  ex- 
plicit declaration  is  necessary  from  all  the  friends 
of  freedom,  whether  the  late  illegal  and  unheard- 
of  prosecutions  and  sentences  shall  determine  us 
to  abandon  our  cause,  or  shall  excite  us  to  pursue 
a  radical  reform,  with  an'  ardor  proportioned  to 
the  magnitude  of  the  object,  and  with  a  zeal  as 
distinguished  on  our  parts  as  the  treachery  of 
others  in  the  same  glorious  cause  is  notorious. 
The  Society  for  Constitutional  Information  is 
therefore  required  to  determine  whether  or  no  they 
will  be  ready,  when  called  upon,  to  act  in  conjunc- 
tion with  this  and  other  societies  to  obtain  a  fair 
representation  of  the  people  ;  whether  they  concur 
with  us  in  seeing  the  necessity  of  a  speedy  conven- 
tion, for  the  purpose  of  obtaining,  in  a  constitu- 
tional and  legal  method,  a  redress  of  those 
grievances  under  which  we  at  present  labor,  and 


TRIAL  OF  THOMAS  HARDY.        549 

which  can  only  be  effectually  removed  by  a  full 
and  fair  representation  of  the  people  of  Great 
Britain.  The  London  Corresponding  Society 
cannot  but  remind  their  friends  that  the  present 
crisis  demands  all  the  prudence,  unanimity,  and 
vigor,  that  may  or  can  be  exerted  by  men  and 
Britons ;  nor  do  they  doubt  but  that  manly  firm- 
ness  and  consistency  will  finally,  and  they  believe 
shortly,  terminate  in  the  full  accomplishment  of 
all  their  wishes. 

"  I  am,  Fellow-citizen, 

"  (In  my  humble  measure), 
"  A  friend  to  the  Rights  of  Man, 
(Signed)  "  T.  HARDY,  Secretary." 

They  then  resolve  that  there  is  no  security  for 
the  continuance  of  any  right  but  in  equality  of 
laws;  not  in  equality  of  property,  the  ridiculous 
bugbear  by  which  you  are  to  be  frightened  into 
injustice;  on  the  contrary,  throughout  every  p:»rt 
of  the  proceedings,  and  most  emphatically  in  Mr. 
Yorke's  speech,  so  much  relied  on,  the  beneficial 
subordinations  of  society,  the  security  of  property, 
and  the  prosperity  of  the  landed  and  commercial 
interests  are  held  forth  as  the  very  objects  to  be 
attained  by  the  reform  in  the  representation  which 
they  sought  for. 

In  examining  this  first  moving  toward  a  secoml 
convention,  the  first  thing  to  be  considered  is,  what 


550     SPEECH  OF  MR.  ERSKINE  ON  THE 

reason  there  is,  from  the  letter  I  have  just  read  to 
you,  or  from  anything  that  appears  to  have  led  to 
it,  to  suppose  that  a  different  sort  of  convention 
was  projected  from  that  which  had  been  before 
assembled  and  dispersed.  The  letter  says  another 
British  convention;  and  it  describes  the  same  ob- 
jects as  the  first  —  compare  all  the  papers  for  the 
calling  the  second  convention  with  those  for  as- 

o 

sembling  the  first,  and  you  will  find  no  difference, 
except  that  they  mixed  with  them  extraneous  and 
libellous  matter,  arising  obviously  from  the  irrita- 
tion produced  by  the  sailing  of  the  transports  with 
their  brethren  condemned  to  exile.  These  papers 
have  already  been  considered  and  separated,  as 
they  ought  to  be  from  the  charge. 

I  will  now  lay  before  you  all  the  remaining 
operations  of  this  formidable  conspiracy  up  to  the 
prisoner's  imprisonment  in  the  tower.  Mr.  Hardy 
having  received  the  letter  just  adverted  to,  regard- 
ing a  second  convention,  the  Corresponding 
Society  wrote  the  letter  of  the  27th  of  March, 
which  was  found  in  his  hand-writing,  and  is  pub- 
lished in  the  first  report,  page  11.  This  letter, 
enclosing  the  resolutions  they  had  come  to  upon 
the  subject,  was  considered  by  the  Constitutional 
Society  on  the  next  day,  the  28th  of  March,  the 
ordinary  day  for  their  meeting,  when  they  sent  an 
answer  to  the  Corresponding  Society,  informing 
them  that  they  had  received  their  communication, 


TRIAL  OF  THOMAS  HARDY.  551 

that  they  heartily  concurred  with  them  in  the 
objects  they  had  in  view,  and  invited  them  to  send 
a  delegation  of  their  members  to  confer  with  them 
on  the  subject 

Now,  what  were  the  objects  they  concurred  in, 
and  what  was  to  be  the  subject  of  conference 
between  the  societies  by  their  delegates?  Look 
at  the  letter,  which  distinctly  expresses  its  obj 
and  the  means  by  which  they  sought  to  effect 
them ;  had  these  poor  men  (too  numerous  to  meet 
altogether,  and  therefore  renewing  the  cause  of 
parliamentary  reform  by  delegation  from  the  socie- 
ties), any  reason  to  suppose  that  they  were  involv- 
ing themselves  in  the  pains  of  treason,  and  that 
they  were  compassing  the  King's  death,  when  they 
were  redeeming,  as  they  thought,  his  authority 
from  probable  downfall  and  ruin  ?  Had  treason 
been  imputed  to  the  delegates  before  ?  Had  the 
imagining  the  death  of  the  King  ever  been  sus- 

o  o  o 

pected  by  anybody  ?  Or  when  they  were  prose- 
cuted for  misdemeanors,  was  the  prosecution  con- 
sidered as  an  indulgence  conferred  upon  men  win  .si- 
lives  had  been  forfeited  ?  And  is  it  to  be  endured, 
then,  in  this  free  land,  made  free,  too,  by  the  virtue 
of  our  forefathers,  who  placed  the  King  upon  his 
throne  to  maintain  this  freedom,  that  forty  or  fifty 
thousand  people,  in  the  diiVerent  parts  <>t'  the  king- 
dom, assembling  in  their  little  societies  to  spread 
useful  knowledge,  and  to  diffuse  the  principles  of 


552     SPEECH  OF  MR.  ERSKINE  ON  THE 

liberty,  which,  the  more  widely  they  are  spread, 
the  surer  is  the  condition  of  our  free  government, 
are  in  a  moment,  without  warning,  without  any 
law  or  principle  to  warrant  it,  and  without  prece- 
dent or  example,  to  be  branded  as  traitors,  and  to 
be  decimated  as  victims  for  punishment!  The 
Constitutional  Society  having  answered  the  letter  of 
the  27th  of  March,  in  the  manner  I  stated  to  you, 
committees,  from  each  of  the  two  societies,  were 
appointed  to  confer  together.  The  Constitutional 
Society  appointed  Mr.  Joyce,  Mr.  Kidd,  Mr. 
Wardle,  and  Mr.  Holcroft,  all  indicted;  and  Mr. 
Sharpe,  the  celebrated  engraver,  not  indicted,  but 
examined  as  a  witness  by  the  Crown;  five  were 
appointed  by  the  Corresponding  Society  to  meet 
these  gentlemen,  viz.,  Mr.  Baxter,  Mr.  Moore,  Mr. 
Thelwall,  and  Mr.  Hodgson,  all  indicted,'  and  Mr. 
Lovatt,  against  whom  the  bill  was  thrown  out. 
These  gentlemen  met  at  the  house  of  Mr.  Thel- 
wall, on  the  llth  of  April,  and  there  published 
the  resolution,  already  commented  on,  in  con- 
formity with  the  general  objects  of  the  two  socie- 
ties, expressed  in  the  letter  of  the  27th  of  March, 
and  agreed  to  continue  to  meet  on  Mondays  and 
Thursdays  for  further  conference  on  the  subject, 
The  first  Monday  was  the  14th  of  April,  of  which 
we  have  heard  so  much,  and  no  meeting  was  held 
on  that  day ;  the  first  Thursday  was  the  17th  of 
April,  but  there  was  no  meeting;  the  21st  of  April 


TRIAL  OF  THOMAS   HARDY.  553 

was  the  second  Monday,  but  there  was  still  no 
meeting ;  the  24th  of  April  was  the  second  Thurs- 
day, when  the  five  of  the  Corresponding  Society 
attended,  hut  nohody  coming  to  meet  them  from 
the  other,  nothing  of  course  was  transacted ;  on 
Monday,  the  27th  of  April,  three  weeks  after  their 
•first  appointment,  this  bloody  and  impatient  band 
of  conspirators,  seeing  that  a  convention  bill  was 
in  projection,  and  that  Hessians  were  landing  on 
our  coasts,  at  last  assembled  themselves ;  and  now 
we  come  to  the  point  of  action.  Gentlemen,  they 
met;  they  shook  hands  with  each  other;  they 
talked  over  the  news  and  the  pleasures  of  the  day ; 
they  wished  one  another  a  good  evening,  and 
retired  to  their  homes ;  it  is  in  vain  to  hide  it, 
they  certainly  did  all  these  things.  The  same 
alarming  scene  was  repeated  on  the  three  follow- 
ing days  of  meeting,  and  on  Monday,  May  the 
12th,  would,  but  for  the  vigilance  of  government 
have  probably  again  taken  place ;  but  on  that  day 
Mr.  Hardy  was  arrested,  his  papers  seized,  and  the 
conspiracy  which  pervaded  this  devoted  country 
was  dragged  into  the  face  of  day.  To  be  serious, 
gentlemen,  you  have  literally  the  whole  of  it 
before  you  in  the  meetings  I  have  just  stated  ;  in 
which  you  find  ten  gentlemen,  appointed  by 
two  peaceable  societies,  conversing  upon  the  sub- 
ject of  a  constitutional  reform  in  Parliament,  pub- 
lishing the  result  of  their  deliberations,  without 


554  SPEECH   OF   ME.    ERSKINE   ON   THE 

any  other  arms  than  one  supper-knife,  which,  when 
I  come  to  the  subject  of  arms,  I  will,  in  form  lay 
before  you.  Yet  for  this,  and  for  this  alone,  you 
are  asked  to  devote  the  prisoner  before  you,  and 
his  unfortunate  associates,  to  the  pains  and  penal- 
ties of  death,  and  not  to  death  alone,  but  to  the 
eternal  stigma  and  infamy  of  having  conceived  the 
detestable  and  horrible  design  of  dissolving  the 
government  of  their  country,  and  of  striking  at 
the  life  of  their  Sovereign,  who  had  never  given 
offence  to  them  nor  to  any  of  his  subjects. 

Gentlemen,  as  a  conspiracy  of  this  formidable 
extension,  which  had  no  less  for  its  object  than  the 
sudden  annihilation  of  all  the  existing  authorities 
of  the  country,  and  of  everything  that  supported 
them,  could  not  be  even  gravely  stated  to  have  an 
existence,  without  contemplation  of  force  to  give 
it  effect;  it  was  absolutely  necessary  to  impress 
upon  the  public  mind,  and  to  establish,  by  formal 
evidence,  upon  the  present  occasion,  that  such  a 
force  was  actually  in  preparation.  This  most  im- 
portant and  indispensable  part  of  the  cause  was 
attended  with  insurmountable  difficulties,  not  only 
from  its  being  unfounded  in  fact,  but  because  it 
had  been  expressly  negatived  by  the  whole  con- 
duct of  government;  for  although  the  motions  of 
all  these  societies  had  been  watched  for  two  years 
together;  though  their  spies  had  regularly  at- 
tended, and  collected  regular  journals  of  their 


TRIAL  OF  THOMAS   HARDY.  555 

proceedings;  yet  when  the  first  report  was  fin- 
ished, and  the  habeas  corpus  act  suspended  upon 
the  foundation  of  the  facts  contained  in  it,  there 
was  not  to  be  found,  from  one  end  of  it  to  the 
other,  even  the  insinuation  of  arms ;  I  believe  that 
this  circumstance  made  a  great  impression  upon 
all  the  thinking,  dispassionate  part  of  the  public, 
and  that  the  materials  of  the  first  report  were 
thought  to  furnish  but  a  slender  argument  to  sup- 
port such  a  total  eclipse  of  liberty.  No  vender, 
then,  that  the  discovery  of  a  pike  in  the  interval 
between  the  two  reports,  should  have  been  highly 
estimated.  I  mean  no  reflections  upon  govern- 
ment, and  only  state  the  matter,  as  a  man  of  great 
wit  publicly  reported  it;  he  said  that  the  dis- 
coverer,  when  he  first  beheld  the  long-looked  for 
pike,  was  transported  beyond  himself  with  enthu- 
siasm and  delight,  and  that  he  hung  over  the  rusty 
instrument  with  all  the  raptures  of  a  fond  mother, 
who  embraces  her  first-born  infant,  "and  thanks 
her  God  for  all  her  travail  past." 

In  consequence  of  this  discovery,  whoever  might 
have  the  merit  of  it,  and  whatever  the  discoverer 
might  have  felt  upon  it,  persons  were  sent  by 
government,  and  properly  sent,  into  all  corners  of 
the  kingdom  to  investigate  the  extent  of  the  mis- 
chief; the  fruit  of  this  inquiry  has  been  laid  before 
you,  and  I  pledge  myself  to  sum  up  the  evidi-n .•<• 
which  you  have  had  upon  the  subject,  not  by 


556     SPEECH  OF  ME.  EKSKINE  ON  THE 

parts,  or  by  general  observations,  but  in  the  same 
manner  as  the  court  itself  must  sum  it  up  to  you, 
when  it  lays  the  whole  body  of  the  proof  with 
fidelity  before  you.  Notwithstanding  all  the 
declamations  upon  French  anarchy,  I  think  I  may 
safely  assert,  that  it  has  been  distinctly  proved,  by 
the  evidence,  that  the  Sheffield  people  were  for 
universal  representation  in  a  British  House  of  Com- 
mons. This  appears  to  have  been  the  general 
sentiment,  with  the  exception  of  one  witness, 
whose  testimony  makes  the  truth  and  bona  fides 
of  the  sentiments  far  more  striking ;  the  witness  I 
allude  to,  George  Widdison,  whose  evidence  I  shall 
state  in  its  place,  seems  to  be  a  plain,  blunt,  honest 
man,  and,  by  the  bye, — which  must  never  be  for- 
gotten of  any  of  them, — the  Crown's  witness.  I  am 
not  interested  in  the  veracity  of  any  of  them,  for, 
as  I  have  frequently  adverted  to,  the  Crown  must 
take  them  for  better  for  worse;  it  must  support 
each  witness,  and  the  whole  bodv  of  its  evidence 

tt 

throughout.  If  you  do  not  believe  the  whole  of 
what  is  proved  by  a  witness,  what  confidence  can 
you  have  in  part  of  it,  or  what  part  can  you  select 
to  confide  in  ?  If  you  are  deceived  in  part,  who 
shall  measure  the  boundaries  of  the  deception  ? 
This  man  says  he  was  at  first  for  universal  suf- 
frage ;  Mr.  Yorke  had  persuaded  him,  from  all  the 
books,  that  it  was  the  best ;  but  that  he  afterwards 
saw  reason  to  think  otherwise,  and  was  not  for 


TRIAL  OF  THOMAS  HARDY.        557 

going  the  length  of  the  Duke  of  Richmond ;  but 
that  all  the  other  Sheffield  people  were  for  the 
Duke's  plan ;  a  fact  confirmed  by  the  cross-exami- 
ation  of  every  one  of  the  witnesses.  You  have, 
therefore,  positively  and  distinctly,  upon  the  uni- 
versal authority  of  the  evidence  of  the  Crown,  the 
people  of  Sheffield,  who  are  charged  as  at  the  h»-;nl 
of  a  republican  conspiracy,  proved  to  be  associated 
on  the  very  principles  which,  at  different  times, 
have  distinguished  the  most  eminent  persons  in 
this  kingdom;  and  the  charge  made  upon  them, 
with  regard  to  arms,  is  cleared  up  by  the  same 
universal  testimony. 

You  recollect  that,  at  a  meeting  held  upon 
the  Castle-hill,  there  were  two  parties  in  the 
country,  and  it  is  material  to  attend  to  what  these 
two  parties  were.  In  consequence  of  the  King's 
proclamation,  a  great  number  of  honorable,  zealous 
persons,  who  had  been  led  by  a  thousand  artifices 
to  believe,  that  there  was  a  just  cause  of  alarm  in 
the  country,  took  very  extraordinary  steps  for 
support  of  the  magistracy.  The  publicans  were 
directed  not  to  entertain  persons  who  were  friendly 
to  a  reform  of  Parliament ;  and  alarms  of  change 
and  revolution  pervaded  the  country,  which  be- 
came greater  and  greater,  as  our  ears  were  hourly 
assailed  with  the  successive  calamities  of  France. 
Others  saw  things  in  an  opposite  li^ht,  and  nm.-id- 
ered  that  these  calamities  were  made  the  pi 


558  SPEECH   OF   MR.    ERSKINE   ON   THE 

for  extinguishing  British  liberty;  heart-burnings 
arose  between  the  two  parties;  and  some,  I  am 
afraid  a  great  many,  wickedly  or  ignorantly  inter- 
posed in  a  quarrel  which  zeal  had  begun.  The 
societies  were  disturbed  in  their  meetings,  and 
even  the  private  dwellings  of  many  of  their  mem- 
bers were  illegally  violated.  It  appears  by  the 
very  evidence  for  the  Crown,  by  which  the  cause 
must  stand  or  fall,  that  many  of  the  friends  of 
reform  were  daily  insulted,  their  houses  threatened 
to  be  pulled  down,  and  their  peaceable  meetings 
beset  by  pretended  magistrates,  without  the  pro- 
cess of  the  law.  These  proceedings  naturally 
suggested  the  propriety  of  having  arms  for  self- 
defence,  the  first  and  most  unquestionable  privilege 
of  man,  in  or  out  of  society,  and  expressly  provided 
for  by  the  very  letter  of  English  law.  It  was 
ingeniously  put  by  the  learned  counsel  in  the  ex- 
amination of  a  witness,  that  it  was  complained  of 
amongst  them,  that  very  little  was  sufficient  to 
obtain  a  warrant  from  some  magistrates,  and  that 
therefore  it  was  as  well  to  be  provided  for  those 
who  might  have  warrants  as  those  who  had  none. 
Gentlemen,  I  am  too  much  exhausted  to  pursue  or 
argue  such  a  difference,  even  if  it  existed  upon  the 
evidence,  because  if  the  societies  in  question,  how- 
ever mistakenly,  considered  their  meetings  to  be 
legal,  and  the  warrants  to  disturb  them  to  be  be- 
yond the  authority  of  the  magistrates  to  grant, 


TRIAL  OF  THOMAS   HARDY.  559 

they  had  a  right,  at  the  peril  of  the  legal  conse- 
quences, to  stand  upon  their  defence ;  and  it  is  no 
transgression  of  the  law,  much  less  high  treason 
against  the  King,  to  resist  his  officers  when  tlu-y 
pass  the  bounds  of  their  authority.  So  much  for 
the  general  evidence  of  arms;  and  the  first  and 
last  time  that  even  the  name  of  tin-  pri>«»mT  H 
connected  with  the  subject,  is  by  a  letter  he  re- 
ceived from  a  person  of  the  name  of  Davison.  I 
am  anxious  that  this  part  of  the  case  should  be  dis- 
tinctly understood,  and  I  will,  therefore,  bring 
back  this  letter  to  your  attention.  The  letter  is 
as  follows : 

"FELLOW -CITIZEN:  The  bare-faced  aristocracv 

• 

of  the  present  administration  has  made  it  necessary 
that  we  should  be  prepared  to  act  on  the  defensive, 
against  any  attack  they  may  command  tlu-ir 
newly-armed  minions  to  make  upon  us.  A  plan 
has  been  hit  upon,  and,  if  encouraged  suflk-irntly, 
will,  no  doubt,  have  the  effect  of  furnishing  a  quan- 
tity of  pikes  to  the  patriots,  great  enough  to  make 
them  formidable.  The  blades  are  made  of  steel, 
tempered  and  polished  after  an  approved  form. 
They  may  be  fixed  into  any  shafts,  but  fir  ones 
are  recommended,  of  the  girt  of  the  •OGomputymg 
hoops  at  the  top  end,  and  about  an  inch  more  at 
the  bottom. 

The  blades  and  hoops,  more  than  which  cannot 


560     SPEECH  OF  ME.  EKSKINE  ON  THE 

properly  be  sent  to  any  great  distance,  will  be 
charged  one  shilling.  Money  to  be  sent  with  the 
orders. 

"  As  the  institution  is  in  its  infancy,  immediate 
encouragement  is  necessary. 

"  Orders  may  be  sent  to  the  Secretary  of  the 
Sheffield  Constitutional  Society.  [Struck  out.] 

"  RICHARD  DAVISON. 

"Sheffield,  April  24, 1794." 

Gentlemen,  you  must  recollect,  for,  if  it  should 
escape  you,  it  might  make  a  great  difference,  that 
Davison  directs  the  answer  of  this  letter  to  be  sent 
to  Robert  Moody,  at  Sheffield,  to  prevent  post- 
office  suspicion ;  and  that  he  also  encloses  it  in  a 
similar  one,  which  Mr.  Hardy  was  to  forward  to 
Norwich,  in  order  that  the  society  at  that  place 
might  provide  pikes  for  themselves,  in  the  same 
manner  that  Davison  was  recommending,  through 
Hardy,  to  the  people  of  London.  Now  what  fol- 
lowed upon  the  prisoners  receiving  this  letter  ?  It 
is  in  evidence,  by  this  very  Moody,  to  whom  the 
answer  was  to  be  sent,  and  who  was  examined  as 
a  witness  by  the  Crown,  that  he  never  received 
any  answer  to  the  letter,  and,  although  there  was 
an  universal  seizure  of  papers,  no  such  letter,  nor 
any  other,  appeared  to  have  been  written  ;  and, 
what  is  more,  the  letter  to  Norwich,  from  Davison, 
enclosed  in  his  letter  to  Hardy,  was  never  forward- 


TRIAL  OF  THOMAS   HARDY.  561 

ed,  but  was  found  in  his  custody  when  he  was 
arrested,  three  weeks  afterwards,  folded  up  in  tin* 
other,  and  unopened,  as  he  received  it.  Good 
God?  what  is  become  of  the  humane  sanctuary  of 
English  justice,  where  is  the  sense  and  meaning  of 
the  term  proveably  in  the  statute  of  King  Kdward, 
if  such  evidence  can  be  received  again-t  an  Knglish 
subject,  on  a  trial  for  his  life?  If  a  man  writes  a 
letter  to  me  about  pikes,  or  about  any  tiling  else, 
can  I  help  it?  And  is  it  evidence  (except  t«>  an j nit 
BM  of  suspicion)  when  it  appears  that  nothing  is 
done,  upon  it?  Mr.  Hardy  never  before  corre- 
sponded with  Davison,  he  never  desired  him  to 
write  to  him.  How  indeed  could  he  desire  him 
when  his  very  existence  was  unknown  to  him?  He 
never  returned  an  answer;  he  never  forwarded  the 
enclosed  to  Norwich;  he  never  even  communicated 
the  letter  itself  to  his  own  society,  although 
he  was  its  secretary,  which  showed  he  considered 
it  as  the  unauthorised,  officious  correspondence  of 
a  private  man  ;  he  never  acted  upon  it  at  all,  nor 
appears  to  have  regarded  it  as  dangerous  or  im- 
portant, since  he  neither  destroyed  nor  concealed 
it.  Gentlemen,  I  declare  I  hardly  know  in  what 
language  to  express  my  astonishment,  that  the 
Crown  can  ask  you  to  shed  the  blood  of  the  man 
at  the  bar  upon  nieli  foundations.  Yet  this  is  the 
whole  of  the  written  evidence  concerning  arms ; 
for  the  remainder  of  the  plot  rests,  for  its  fouiula- 
30  B 


562  SPEECH   OF   MR.    ERSKINE   ON   THE 

tion,  upon  the  parol  evidence,  the  whole  of  which 
I  shall  pursue  with  precision,  and  not  suffer  a  link 
of  the  chain  to  pass  unexarnined. 

William  Carnage  was  the  first  witness;  he  swore 
that  the  Sheffield  Societies  were  frequently  insult- 
ed, and  threatened  to  be  dispersed;  so  that  the 
people  in  general  thought  it  necessary  to  defend 
themselves  against  illegal  attacks;  that  the  justices 
having  officiously  intruded  themselves  into  their 
peaceable  and  legal  meetings,  they  thought  that 
they  had  a  right  to  be  armed ;  but  they  did  not 
claim  this  right  under  the  law  of  nature,  or  by 
theories  of  governments,  but  as  English  subjects, 
under  the  government  of  England ;  for  they  say 
in  their  paper,  which  has  been  read  by  the  Crown 
that  would  condemn  them,  that  they  were  entitled 
by  the  Bill  of  Rights  to  be  armed.  Gentlemen, 
they  state  their  title  truly.  The  preamble  of  that 
statute  enumerates  the  offences  of  King  James  the 
Second ;  amongst  the  chief  of  which  was,  his  caus- 
ing his  subjects  to  be  disarmed,  and  then  our 
ancestors  claim  this  violated  right  as  their  inde- 
feasible inheritance.  Let  us  therefore  be  cautious 
how  we  rush  to  the  conclusion,  that  men  are  plot- 
ting treason  against  the  King,  because  they  are 
asserting  a  right,  the  violation  of  which  has  been 
adjudged  against  a  king  to  be  treason  against  the 
people ;  and  let  us  not  suppose  that  English  sub- 
jects are  a  banditti,  for  preparing  to  defend  their 


TRIAL  OF  THOMAS  HARDY.        563 

legal  liberties  with  pikes,  because  pikes  may  have 
been  accidentally  employed  in  another  country  to 
destroy  both  liberty  and  law.  Carnage  says  he 
was  spoken  to  by  this  Davison  about  three  dozen 
of  pikes.  What  then  ?  He  is  the  Crown's  witness, 
whom  they  offer  to  you  as  the  witness  of  truth, 

•/  9f 

and  he  started  with  horror  at  the  idea  of  violence, 
and  spoke  with  visible  reverence  for  the  King; 
saying,  God  forbid  that  he  should  touch  him;  but 
he,  nevertheless,  had  a  pike  for  himself.  Indeed, 
the  manliness  with  which  he  avowed  it,  gave  an 
additional  strength  to  his  evidence,  "No  doubt," 
he  says,  "  I  had  a  pike,  but  I  would  not  have  re- 
mained an  hour  a  member  of  the  society,  if  I  had 
heard  a  syllable,  that  it  was  in  the  contemplation 
of  anybody  to  employ  pikes  or  any  other  arms 
against  the  King  of  the  government.  We  nn-jint 
to  petition  Parliament,  through  the  means  of  the 
Convention  of  Edinburgh,  thinking  that  the  House 
of  Commons  would  listen  to  this  expression  of  the 
general  sentiments  of  the  people;  for  it  has  been 
thrown  out,  he  said,  in  Parliament,  that  the  people 
did  not  desire  it  themselves." 

.Mr.  Broomhead,  whose  evidence  I  have  already 
commented  upon,  a  sedate,  plain,  sensible  man, 
spoke  also  of  his  affection  to  the  government,  and 
of  the  insults  and  threats  which  had  been  offered 
to  the  people  of  Sheffield.  He  says  :  "  I  heard  of 
arms  on  the  Castle-hill,  but  it  is  fit  this  should  be 


564  SPEECH   OF   MR.    EESKINE   ON   THE 

distinctly  explained ;  a  wicked  hand-bill,  to  pro- 
voke and  terrify  the  multitude,  had  been  thrown 
about  the  town  in  the  night,  which  caused  agita- 
tion in  the  minds  of  the  people ;  and  it  was  then 
spoken  of,  as  being  the  right  of  every  individual, 
to  have  arms  for  defence :  but  there  was  no  idea 
ever  started  of  resisting,  much  less  of  attacking 
the  government.  I  never  heard  of  such  a  thing. 
I  fear  God,"  said  the  witness,  "and  honor  the 
King;  and  would  not  have  consented  to  send  a 
delegate  to  Edinburgh,  but  for  peaceable  and  legal 
purposes." 

The  next  evidence  upon  the  subject  of  arms,  is 
what  is  proved  by  Widdison,  to  which  I  beg  your 
particular  attention,  because,  if  there  be  any  reli- 
ance upon  his  testimony,  it  puts  an  end  to  every 
criminal  imputation  upon  Davison,  through  whom, 
in  the  strange  manner  already  observed  upon, 
Hardy  could  a1  one  be  criminated. 

This  man,  Widdison,  who  was  both  a  turner  and 
hair-dresser,  and  who  dressed  Davison's  hair,  and 
was  his  most  intimate  acquaintance,  gives  you  an 
account  of  their  most  confidential  conversations 
upon  the  subject  of  the  pikes,  when  it  is  impossi- 
ble that  they  could  be  imposing  upon  one  another  ; 
and  he  declares,  upon  his  solemn  oath,  that  Davi- 
son, without  even  the  knowledge  or  authority  of 
the'  Sheffield  Society,  thinking  that  the  same  insults 
might  be  offered  to  the  London  Societies,  wrote  the 


TRIAL   OF   THOMAS    HARDY.  565 

letter  to  Hardy,  of  his  own  head,  as  the  witness 
expressed  it,  and  that  lie,  Widdison,  made  the 
pike-shafts,  to  the  number  of  a  dozen  and  a  half. 
Davison,  he  said,  was  his  customer;  he  told  him 
that  people  began  to  think  themselves  in  danger, 
and  he  therefore  made  the  handles  of  the  pikes  for 
sale,  to  the  number  of  a  dozen  and  a  half,  and  one 
likewise  for  himself,  without  conceiving  that  he 
offended  against  any  law.  "I  love  the  king,"  said 
Widdison,  "as  much  as  any  man,  and  all  the 
people  I  associated  with  did  the  same;  I  would 
not  have  staid  with  them  if  they  had  not;  Mr. 
Yorke  often  told  me  privately  that  he  was  for 
universal  representation,  and  so  were  we  all ;  the 
Duke  of  Richmond's  plan  was  our  only  object." 
This  was  the  witness  who  was  shown  the  Duke's 
letter,  and  spoke  to  it  as  being  circulated,  and  as 
the  very  creed  of  the  Societies.  This  evidence 
shows,  beyond  all  doubt,  the  genuine  sentiments 
of  these  people,  because  it  consists  of  their  most 
confidential  communications  with  one  another ;  and 
the  only  answer,  therefore,  that  can  possibly  be 
given  to  it  is,  that  the  witnesses,  who  deliver  it, 
are  imposing  upon  the  court.  But  this,  as  I  have 
wearied  you  with  reiterating,  the  Crown  can  nut 
say;  for,  in  that  case,  their  whole  proof  falls  to 
the  ground  together,  since  it  is  only  from  the  same 
witnesses  that  the  very  existence  of  tlirs<-  {.ikes 
and  their  handles  comes  before  us;  and,  if  you 


566  SPEECH    OF    MR.    ERSKINE   ON    THE 

suspect  their  evidence  in  part,  for  the  reasons 
already  given,  it  must  be  in  toto  rejected.  My 
friend  is  so  good  as  to  furnish  me  with  this  further 
observation :  that  Widdison  said  he  had  often 
heard  those  who  called  themselves  aristocrats  say, 
that  if  an  invasion  of  the  country  should  take 
place,  they  would  begin  with  destroying  their 
enemies  at  home,  that  they  might  be  unanimous 
in  the  defence  of  their  country.  - 

John  Hill  was  next  called ;  He  is  a  cutler,  and 
was  employed  by  Davison  to  make  the  blades  for 
the  pikes ;  he  saw  the  letter  which  was  sent  to 
Hardy,  and  knew  that  it  was  sent,  lest  there  should 
be  the  same  call  for  defence  in  London  against 
illegal  attacks  upon  the  Societies ;  for  that  at  Shef- 
field they  were  daily  insulted,  and  that  the  opposite 
party  came  to  his  house,  fired  muskets  under  the 
door,  and  threatened  to  pull  it  down ;  he  swears 
that  they  were,  to  a  man,  faithful  to  the  King,  and 
that  the  reform  proposed  was  in  the  Commons 
House  of  Parliament. 

John  Edwards  was  called,  further  to  connect 
the  prisoner  with  this  combination  of  force ;  but  so 
far  from  establishing  it,  he  swore,  upon  his  cross- 
examination,  that  his  only  reason  for  going  to 
Hardy's  was,  that  he  wanted  a  pike  for  his  own 
defence,  without  connection  with  Davison  or  Shef- 
field, and  without  concert  or  correspondence  with 
anybody.  He  had  heard,  he  said,  of  the  violences 


TRIAL  OP  THOMAS   UARDT.  '7 

at  Sheffield,  and  of  the  pikes  that  had  been  made 
there  for  defence ;  that  Hardy,  on  hi*  application, 
showed  him  the  letter  which,  as  has  appeared,  he 
never  showed  to  any  other  person.  This  is  the 
whole  sum  and  su hstance  of  the  evidence  which 
applies  to  the  charge  of  pikes,  after  the  closest 
investigation,  under  the  sanction,  and  by  the  aid 
of  Parliament  itself;  evidence  which,  so  far  from 
establishing  the  fact,  would  have  been  a  witis- 
factory  answer  to  almost  any  testimony  by  which 
such  a  fact  could  have  been  supported ;  for  in  this 
unparalleled  proceeding,  the  prisoner's  counsel  is 
driven  by  his  duty  to  dwell  upon  the  detail  of  the 
Crown's  proofs;  because  the  whole  body  of  it  is 
the  completest  answer  to  the  indictment  which 
even  a  free  choice  itself  could  have  selected.  It  is 
further  worthy  of  your  attention,  that,  as  far  as 
the  evidence  proceeds  from  these  plain,  natural 
sources,  which  the  Crown  was  driven  to,  for  the 
necessary  foundation  of  the  proc  •  ding  t*  :'•  •:••  \  -u. 
it  has  been  simple,  uniform,  natural,  and  consist- 
ent ;  and  that  whenever  a  different  complexion 
was  to  be  given  to  it,  it  was  only  through  the 
medium  of  spies  and  informers,  and  of  men  inde- 
pendently of  their  infamous  trade,  of  the  HUM 
abandoned  and  profligate  characters. 

Before  I  advert  to  what  has  been  sworn  by  tins 
description  of  persons,  I  will  give  you  a  whole- 
some caution  concerning  them,  and,  having  no 


568     SPEECH  OF  MR.  ERSKINE  ON  THE 

eloquence  of  my  own  to  enforce  it,  I  will  give  it  to 
you  in  the  language  of  the  same  gentleman  whose 
works  are  always  seasonable,  when  moral  or  politi- 
cal lessons  are  to  be  rendered  delightful.  Look 
then  at  the  picture  of  society,  as  Mr.  Burke  has 
drawn  it,  under  the  dominion  of  spies  and  in- 
formers ;  I  say  under  their  dominion,  for  a  resort 
to  spies  may,  on  occasions,  be  justifiable,  and  their 
evidence,  when  confirmed,  may  deserve  implicit 
credit;  but  I  say  under  the  dominion  of  spies  and 
informers,  because  the  case  of  the  Crown  must 
stand  alone  upon  their  evidence,  and  upon  their 
evidence,  not  only  unconfirmed,  but  in  direct  con- 
tradiction to  every  witness,  not  an  informer  or  a 
spy,  and  in  a  case,  too,  where  the  truth,  whatever 
it  is,  lies  within  the  knowledge  of  forty  or  fifty 
thousand  people.  Mr.  Burke  says  —  I  believe  I 
can  remember  it  without  reference  to  the  book: 

"A  mercenary  informer  knows  no  distinction. 
Under  such  a  system  the  obnoxious  people  are 
slaves,  not  only  to  the  government,  but  they  live 
at  the  mercy  of  every  individual ;  they  are  at  once 
the  slaves  of  the  whole  community,  and  of  every 
part  of  it;  and  the  worst  and  most  unmerciful  men 
are  those  on  whose  goodness  they  most  depend. 

"In  this  situation  men  not  only  shrink  from  the 
frowns  of  a  stern  magistrate,  but  are  obliged  to  fly 
from  their  very  species.  The  seeds  of  destruction 
are  sown  in  civil  intercourse  and  in  social  habi- 


TRIAL   OF   THOMAS    IIAIIDY.  509 

twles.  The  blood  of  wholesome  kin. In  .1  is  infected. 
The  tables  and  beds  an*  surrounded  with  snares. 
All  the  means  given  by  Providence  to  make  life 
safe  and  comfortable,  are  |>erverted  into  instru- 
ments of  terror  and  torment.  This  specie*  of  uni- 
versal subserviency  that  makes  the  verv  servant 

*  w 

who  waits  behind  your  chair,  the  arbiter  of  your 
life  and  fortune,  has  such  a  tendency  to  degrade 
and  abase  mankind,  and  to  deprive  them  of  that 
assured  and  liberal  state  of  mind  which  alone  can 
make  us  what  we  ought  to  be,  that  I  vow  to  (Jod, 
I  would  sooner  bring  myself  to  put  a  man  to 
immediate  death  for  opinions  I  disliked,  and  so  to 
get  rid  of  the  man  and  his  opinions  at  once,  than 
to  fret  him  with  a  feverish  being,  tainted  with  the 
jail  distemper  of  a  contagious  servitude,  to  keep 
him  above  ground,  an  animated  mass  of  putre- 
faction, corrupted  himself,  and  corrupting  all  about 
him." 

Gentlemen,  let  me  bring  to  your  recollection  the 
deportment  of  the  first  of  this  tribe,  Mr.  Alexander, 
who  could  not  in  half  an  hour  even  tell  where  he 
had  lived,  or  whv  he  had  left  his  master.  Does 

v 

any  man  talieve  that  he  had  forgotten  these  most 
recent  transactions  of  his  life?  Certainly  not ;  but 
his  history  would  have  undone  his  credit,  and 
mast,  therefore,  be  concealed.  He  had  lived  with 
a  linen-draper,  whose  address  we  could  scarcely 
get  from  him,  and  they  had  parted  because  ihey 


570     SPEECH  OF  MK.  EKSKINE  ON  THE 

had  words.  What  were  the  words?  We  were 
not  to  be  told  that.  He  then  went  to  a  Mr. 
Killerby's,  who  agreed  with  him  at  twenty-five 
guineas  a  year.  Why  did  he  not  stay  there  ?  He 
was  obliged,  it  seems,  to  give  up  this  lucrative 
agreement,  because  he  was  obliged  to  attend  here 
as  a  witness.  Gentlemen,  Mr.  Killerby  lives  only 
in  Holborn,  and  was  he  obliged  to  give  up  a  per- 
manent engagement  with  a  tradesman  in  Holborn, 
because  he  was  obliged  to  be  absent  at  the  Old 
Bailey  for  five  minutes  in  one  single  day  ?  I  asked 
him  if  he  had  told  Mr.  White,  the  solicitor  for  the 
treasury,  who  would  not  have  been  so  cruel  as  to 
deprive  a  man  of  his  bread,  by  keeping  him  upon 
attendance  which  might  have  been  avoided  by 
particular  notice.  The  thing  spoke  for  itself;  he 
had  never  told  Mr.  White;  but  had  he  ever  told 
Mr.  Killerby  ?  For  how  else  could  he  know  that 
his  place  was  inconsistent  with  his  engagement 
upon  this  trial  ?  No,  he  had  never  told  him ! 
How  then  did  he  collect  that  his  place  was  incon- 
sistent with  his  duty  here?  This  question  never 
received  any  answer.  You  saw  how  he  dealt  with 
it,  and  how  he  stood  stammering,  not  daring  to 
lift  up  his  countenance  in  any  direction,  confused, 
disconcerted,  and  confounded. 

Driven  from  the  accusation  upon  the  subject  of 
pikes,  and  even  from  the  very  color  of  accusation, 
and  knowing  that  nothing  was  to  be  done  without 


TRIAL  OF  THOMAS   HARDY.  571 

the  proof  of  arms,  we  have  got  thin  mi*Tal>l« , 
solitary  knife,  held  up  to  us  an  the  engine  which 
was  to  destroy  the  constitution  of  this  country ;  and 
Mr.  Groves,  an  Old  Bailey  solicitor,  employed  as 
a  spy  upon  the  occasion,  has  been  selected  to  give 
probability  to  this  monstrous  absurdity,  by  his 
respectable  evidence.  I  understand  that  this  same 
gentleman  has  carried  his  system  of  spying  to  such 
a  pitch  as  to  practice  it  since  this  unfortunate  man 
has  been  standing  a  prisoner  before  you,  proffering 
himself,  as  a  friend,  to  the  committee  preparing 
his  defence,  that  he  might  discover  to  the  Crown 
the  materials  by  which  he  meant  to  defend  his  life. 
I  state  this  only  from  report,  and  I  ho|)e  in  God  I 
am  mistaken ;  for  human  nature  starts  back  a|» 
palled  from  such  atrocity,  and  shakes  and  trembles 
at  the  very  statement  of  it.  But  as  to  the  perjury 
of  this  miscreant,  it  will  appear  palpable  beyond 
all  question,  and  he  shall  answer  for  it  in  due 
season.  He  tells  you  he  attended  at  Chalk  Farm  ; 
and  that  there,  forsooth,  amongst  about  seven  or 
eight  thousand  people,  he  saw  two  or  three  persons 
with  knives ;  he  might,  I  should  think,  have  seen 
many  more,  as  hardly  any  man  goes  without  a 
knife  of  some  sort  in  his  pocket.  He  asked,  how- 
ever, it  seems,  where  they  got  these  knives,  and 
was  directed  to  Green,  a  hair-dreswer,  who  deals 
besides  in  cutlery;  and  accordingly  this  notable 
Mr.  Groves  went,  as  he  told  us,  to  Green's,  and 


572  SPEECH    OF   MR.    EESKINE   ON   THE 

agked  to  purchase  a  knife ;  when  Green,  in  answer 
to  him,  said :  "Speak  low,  for  my  wife  is  a  damn'd 
aristocrat."  This  answer  was  sworn  to  by  the 
wretch,  to  give  you  the  idea  that  Green,  who  had 
the  knives  to  sell,  was  conscious  that  he  kept  them 
for  an  illegal  and  a  wicked  purpose,  and  that  they 
were  not  to  be  sold  in  public.  The  door,  he  says, 
being  ajar,  the  man  desired  him  to  speak  low, 
from  whence  he  would  have  you  understand  that 
it  was  because  this  aristocratic  wife  was  within 
hearing.  This,  gentlemen,  is  the  testimony  of 
Groves,  and  Green  himself  is  called  as  the  next 
witness;  and  called  by  whom?  Not  by  me;  I 
know  nothing  of  him  ;  he  is  the  Crown's  own  wit- 
ness. He  is  called  to  confirm  Groves'  evidence ; 
but,  not  being  a  spy,  he  declared  solemnly  upon 
his  oath,  and  I  can  confirm  his  evidence  by  several 
respectable  people,  that  the  knives  in  question  lie 
constantly,  and  lay  then,  in  his  open  shop-window, 
in  what  is  called  the  show-glass,  where  cutlers,  like 
other  tradesmen,  expose  their  ware  to  public  view ; 
and  that  the  knives  differ  in  nothing  from  others 
publicly  sold  in  the  Strand,  and  every  other  street 
in  London  ;  that  he  bespoke  them  from  a  rider,  who 
came  round  for  orders  in  the  usual  way;  that  he 
sold  only  fourteen  in  all,  and  that  they  were  made 
up  in  little  packets,  one  of  which  Mr.  Hardy  had 
who  was  to  choose  one  for  himself,  but  four  more 
were  found  in  his  possession,  because  he  was 


TRIAL  OF  THOMAS  HARDY.        573 

arrested  before  Green  had  an  op|>ortunity  of  send- 
ing for  them. 

Gentlemen,  I  think  the  pikes  and  knives  are  now 
completely  dis|>osed  of;  but  something  was  said 
also  about  guns;  let  us,  therefore,  see  what  that 
amounts  to.  It  apjHiirs  that  Mr.  Hardy  wa» 
applied  to  by  Samuel  Williams,  a  gun-engraver, 
who  was  not  even  a  member  of  any  society,  and 
who  asked  him  if  he  knew  any  body  who  wanted 
a  gun.  Hardy  said  he  did  not;  and  undoubtedly, 
upon  the  Crown's  own  showing,  it  must  l>e  taken 
for  granted  that  if  at  that  time  he  had  been 
acquainted  with  any  plan  of  arming,  he  would 
have  given  a  different  answer,  and  would  have 
jumped  at  the  offer.  About  a  fortnight  after- 
wards, however — Hardy  in  the  interval  having 
become  acquainted  with  Franklow  —  Williams 
called  to  buy  a  pair  of  shoes,  and  then  Hardy, 
recollecting  his  former  application,  referred  him  to 
Franklow,  who  hud  in  the  most  public  manner 
raised  the  forty  men,  who  were  called  the  Loyal 
Lambeth  Association ;  so  that,  in  order  to  give 
this  transaction  any  bearing  upon  the  charge,  it 
became  necessary  to  consider  Franklow's  Associa- 
tion as  an  armed  conspiracy  against  the  govern- 
ment; though  the  forty  people  who  composed  it 
were  collected  by  public  advertisement;  though 
they  were  enrolled  under  public  articles;  and 
though  Franklow  himself,  as  apj>ear8  from  the 


574  SPEECH   OF   ME.    ERSKINE   ON   THE 

evidence,  attended  publicly  at  the  Globe  Tavern 
in  his  uniform,  whilst  the  cartouch-boxes  and  the 
other  accoutrements  of  these  secret  conspirators 
lay  openly  upon  his  shop-board,  exposed  to  the 
open  view  of  all  his  customers  and  neighbors. 
This  story,  therefore,  is  not  less  contemptible  than 
that  which  you  must  have  all  heard  concerning 
Mr.  Walker,  whom  I  went  to  defend  at  Lancaster, 
where  that  respectable  gentleman  was  brought  to 
trial  upon  such  a  trumped-up  charge,  supported  by 
the  solitary  evidence  of  one  Dunn,  a  most  infamous 
witness ;  but  what  was  the  end  of  that  prosecu- 
tion ?  I  recollect  it  to  the  honor  of  my  friend, 
Mr.  Law,  who  conducted  it  for  the  Crown,  who, 
knowing,  that  there  were  persons  whose  passions 
were  agitated  upon  these  subjects  at  that  moment, 
and  that  many  persons  had  enrolled  themselves  in 
societies  to  resist  conspiracies  against  the  govern- 
ment, behaved  in  a  most  manful  and  honorable 
manner,  in  a  manner,  indeed,  which  the  public 
ought  to  know,  -and  which  I  hope  it  never  will 
forget ;  he  would  not  even  put  me  upon  my  chal- 
lenges to  such  persons,  but  withdrew  them  from 
the  panel;  and  when  he  saw  the  complexion  of 
the  affair,  from  the  contradiction  of  the  infamous 
witness  whose  testimony  supported  it,  he  honor- 
ably gave  up  the  cause. 

Gentlemen,  the  evidence  of  Lynam  does  not  re- 
quire the  same  contradiction  which  fell  upon  Mr. 


TRIAL  OF   THOMAS   HARDY.  O/O 

Groves,  because  it  destroys  itself  by  its  own  intrin- 
sic inconsistency ;  I  could  not,  indeed,  if  it  were 
to  save  my  life,  undertake  to  state  it  to  you.     It 
lasted,  I  think,  about  six  or  seven  hours,  bnt  I 
have  marked  under  different  [tarts  of  it,  passages 
M  grossly   contradictor] .  matt)  r  n  i   ip  --••'•.   K 
inconsistent   with   any   course  of  conduct,  that  it 
will  be  sufficient  to  bring  these  parts  to  your  view, 
to  destroy  all  the  rest.     But  let  us  first  examine  in 
what  manner   this   matter,  such  as  it   is,  was  re- 
corded.    He  professed  to  speak  from  note*,  yet  I 
observed  him  frequently  looking  up  to  the  ceiling 
whilst  he  was  speaking ;  when  I  said  to  him,  an 
you  now  speaking  from  a  note?     Have  you  got 
any   note   of    what   you   are   now   saying?      He 
answered,  "Oh  no, this  is  from  recollection.'*  Good 
God    Almighty !    recollection    mixing   itself   with 
notes  in  a  case  of  high  treason  !      He  did  not  even 
take  down  the  words,  nay,  to  do  the  man  justice, 
he  did  not  even  affect  to  have  taken  the  words,  but 
only  the  substance,  as  he  himself  expressed  it.      O 
excellent  evidence !     The  sulwtance  of  words  taken 
down  by  a  spy,  and  supplied,  when  defective,  by 
his  memory.     But  I  must  not  call  him  a  spy  ;  for 
it  seems  he  took  them  bona  fide  as  a  delegate,  and 
yet  bona  fide  as  an  informer  ;  what  a  happy  com- 
bination of  fidelity  !  faithful  to  serve,  and  faithful 
to  betray  !  correct  to  record  for  the  business  of  the 
society,  and  correct  to  dissolve  and  to  punish  it! 


576  SPEECH    OF    ME.    EESKINE   ON    THE 

What,  after  all,  do  the  notes  amount  to  ?  I  will 
advert  to  the  parts  I  allude  to:  they  were,  it  seems, 
to  go  to  Frith  street,  to  sign  the  Declaration  of  the 
Friends  of  the  Liberty  of  the  Press,  which  lay 
there  already  signed  hy  between  twenty  and  thirty 
members  of  the  House  of  Commons,  and  many 
other  respectable  and  opulent  men,  and  then  they 
were  to  begin  civil  confusion,  and  the  King's  head 
and  Mr.  Pitt's  were  to  be  placed  on  Temple  Bar. 
Immediately  after  which  we  find  them  resolving 
unanimously  to  thank  Mr.  Wharton  for  his  speech 
to  support  the  glorious  revolution  of  1688,  which 
supports  the  very  throne  that  was  to  be  destroyed! 
which  same  speech  they  were  to  circulate  in 
thousands  for  the  use  of  the  societies  throughout 
the  kingdom.  Such  incoherent,  impossible  mat- 
ter, proceeding  from  such  a  source,  is  unworthy  of 
all  further  concern. 

Thus  driven,  out  of  everything  which  relates  to 
arms,  and  from  every  other  matter  which  can 
possibly  attach  upon  life,  they  have  recourse  to  an 
expedient,  which,  I  declare,  fills  my  mind  with 
horror  and  terror;  it  is  this-:  The  Corresponding 
Society  had,  you  recollect,  two  years  before,  sent 
delegates  to  Scotland,  with  specific  instructions, 
peaceably  to  pursue  a  parliamentary  reform;  when 
the  convention  which  they  were  sent  to  was  dis- 
persed, they  sent  no  others,  for  they  were  arrested 
when  only  considering  of  the  propriety  of  another 


TRIAL  OF   THOMAS  HARDY.  577 

convention.  It  happened  that  Mr.  Hardy  was  the 
secretary  during  the  ]>eriod  of  these  Scotch  pro- 
ceedings, and  the  letters  consequently  written  hy 
him,  during  that  period,  were  all  official  letters 
from  a  large  body,  circulated  by  him  in  point  of 
form.  "When  the  proposition  took  place  for  call- 
ing a  second  convention,  Mr.  Hardy  continued  to 
be  secretary,  and,  in  that  character,  signed  the 
circular  letter  read  in  the  course  of  the  evidence, 
which  appears  to  have  found  its  way,  in  the  course 
of  circulation,  into  Scotland.  This  single  circum- 
stance has  been  admitted  as  the  foundation  of  re- 
ceiving in  evidence  against  the  prisoner,  a  long 
transaction  imputed  to  one  Watt,  at  Edinburgh, 
whose  very  existence  was  unknown  to  Hardy. 
This  Watt  had  been  employed  by  government 
as  a  spy,  but  at  last  caught  a  Tartar  in  his  spy- 
ship;  for,  in  endeavoring  to  urge  innocent  men  to 
a  project  which  never  entered  their  imaginations, 
he  was  obliged  to  show  himself  ready  to  do  what 
he  recommended  to  others;  and  the  tables  being 
turned  upon  him,  he  was  hanged  by  his  employers. 
This  man  Watt  read  from  a  paper  designs  to  be 
accomplished,  but  which  he  never  intended  to 
attempt,  and  the  success  of  which  he  knew  to  be 
visionary.  To  suppose  that  Great  Britain  could 
have  been  destroyed  by  such  a  rebel  as  Watt, 
would  be,  as  Dr.  Johnson  says,  to  expect  that  a 
great  city  might  be  drowned  by  the  overflow  in- 
37  B 


578     SPEECH  OF  MR.  ERSKINE  ON  THE 

of  its  kennels.  But  whatever  might  be  the  peril 
of  Watt's  conspiracy,  what  had  Hardy  to  do  with 
it  ?  The  people  with  Watt  were  five  or  six  per- 
sons, wholly  unknown  to  Hardy,  and  not  members 
of  any  society  of  which  Mr.  Hardy  was  a  mem- 
ber;  I  vow  to  God,  therefore,  that  I  cannot  ex- 
press what  I  feel,  when  I  am  obliged  to  state  the 
evidence  by  which  he  is  sought  to  be  affected.  A 
letter,  viz.,  the  circular  letter  signed  by  Hardy  for 
calling  another  convention,  is  shown  to  George 
Ross,  who  says  he  received  it  from  one  Stock,  who 
belonged  to  a  society  which  met  in  Nicholson 
street,  in  Edinburgh,  and  that  he  sent  it  to  Perth, 
Strathaven,  and  Paisley,  and  other  places  in  Scot- 
land ;  and  the  single  unconnected  evidence  of  this 
public  letter,  finding  its  way  into  Scotland,  is  made 
the  foundation  of  letting  in  the  whole  evidence, 
which  hanged  Watt,  against  Hardy,  who  never 
knew  him.  Government  hanged  its  own  spy  in 
Scotland  upon  that  evidence,  and  it  may  be  suffi- 
cient evidence  for  that  purpose ;  I  will  not  argue 
the  case  of  a  dead  man,  and,  above  all,  of  such  a 
man  ;  but  I  will  say,  that  too  much  money  was 
spent  upon  this  performance,  as  I  think  it  cost 
government  about  fifty  thousand  pounds.  M'Ewen 
says,  that  Watt  read  from  a  paper  to  a  committee 
of  six  or  seven  people,  of  which  he,  the  witness, 
was  a  member,  that  gentlemen,  residing  in  the 
country,  were  not  to  leave  their  habitations  under 


TRIAL   OF   THOMAS    1IAUDY.  579 

pain  of  death  ;  that  an  attack  was  to  be  made  in 
the  manner  you  remember,  and  that  the  lord 
justice  clerk,  and  the  judges,  were  to  be  cut  off  by 
these  men  in  buckram ;  and  then  an  address  wan 
t"  IM-  sent  IM  iln-  Kin--.  .1-  airing  Mm  to  dirauH  hi  - 
ministers  and  to  put  an  end  to  the  war,  or  that  he 
might  expect  bad  consequences.  What  is  all  this 
to  Mr.  Hardy?  How  is  it  possible  to  affect  him 
with  any  part  of  this  ?  Hear  the  sequel,  and  then 
judge  for  yourselves.  Mr.  Watt  said  (i.  e.,  the 
man  who  is  hanged,  said),  after  reading  the  |>aper, 
that  he,  Watt,  wished  to  correspond  with  Mr. 
Hardy  in  a  safe  manner;  so  that  because  a  rullian 
and  a  scoundrel  whom  I  never  saw  or  heard  of, 
chooses,  at  the  distance  of  four  hundred  miles,  to 
say,  that  he  wishes  to  correspond  with  me,  I  am 
to  be  involved  in  the  guilt  of  his  actions !  It  is 
not  proved,  or  insinuated,  that  Mr.  Hardy  ever 
saw,  or  heard  of,  or  knew,  that  such  men  were  in 
being  as  Watt  or  Downie ;  nor  is  it  proved,  or 
asserted,  that  any  letter  was,  in  fact,  written  by 
either  of  them  to  Hardy,  or  to  any  other  person. 
No  such  letter  has  been  found  in  his  possession, 
nor  a  trace  of  any  connection  between  them  and 
any  member  of  any  English  society;  the  truth  1 
believe  is,  that  nothing  was  intended  by  Watt  but 
to  entrap  others  to  obtain  a  reward  for  liim-«  If. 
and  he  has  been  amply  and  justly  rewarded.  <  im- 
tlemen,  I  desire  to  be  understood  to  be  making  no 


580  SPEECH    OF    MR.    EESKINE    ON   THE 

attacks  upon  government ;  I  have  wished,  through- 
out the  whole  cause,  that  good  intentions  may  be 
imputed  to  it,  but  I  really  confess,  that  it  requires 
some  ingenuity  for  government  to  account  for  the 
original  existence  of  all  this  history,  and  its  subse- 
quent application  to  the  present  trial.  They  went 
down  to  Scotland,  after  the  arrest  of  the  prisoners, 
in  order,  I  suppose,  that  we  might  be  taught  the 
law  of  high  treason  by  the  lord  justice  clerk  of 
Edinburgh,  and  that  there  should  be  a  sort  of  re- 
hearsal to  teach  the  people  of  England  to  admin- 
ister English  laws ;  for,  after  all  this  expense  and 
preparation,  no  man  was  put  upon  his  trial,  nor 
even  arraigned  under  the  special  commission  in 
Scotland,  but  these  two  men ;  one  for  reading  this 
paper,  and  the  other  for  not  dissenting  from  it 
when  it  was  read;  and,  with  regard  to  this  last 
unfortunate  person,  the  Crown  thought  it  was 
indecent,  as  it  would  indeed  have  been  indecent 
and  scandalous,  to  execute  the  law  upon  him ;  as 
a  gentleman  upon  his  jury  said,  he  would  die 
rather  than  convict  Downie  without  a  recommenda- 
tion of  mercy,  and  he  was  only  brought  over  to 
join  in  the  verdict,  under  the  idea  that  he  would 
not  be  executed,  and,  accordingly,  he  has  not  suf- 
fered execution.  If,  Downie,  then,  was  an  object 
of  mercy,  or  rather  of  justice,  though  he  was  in 
the  very  room  with  Watt,  and  heard  distinctly  the 
proposition,  upon  what  possible  ground  can  they 


TRIAL  OF  THOMAS   HARDY.  581 

demand  the  life  of  the  prisoner  at  the  bar,  on 
account  of  a  connection  with  the  very  Name  indi- 
vidual, though  he  never  corresponded  with  him, 
nor  saw  him,  nor  heard  of  him,  to  whose  very 
being  he  was  an  utter  stranger? 

Gentlemen,  it  is  impossible  for  me  to  know  what 
impression  this  observation  makes  u)M)ti  you,  or 
upon  the  court;  but  I  declare  I  am  deeply  im- 
pressed with  the  application  of  it.  How  is  a  man  to 
defend  himself  against  such  implications  of  guilt  ? 
Which  of  us  all  would  be  safe,  standing  at  the  l>ar 
of  God  or  man,  if  he  were  even  to  answer  for  all 
his  own  expressions,  without  taking  ii|xm  him  the 
crimes  or  rashnesses  of  others?  This  poor  man 
has,  indeed,  none  of  his  own  to  answer  for;  yet 
how  can  he  stand  safely  in  judgment  before  you,  if, 
in  a  season  of  alarm  and  agitation,  with  the  whole 
pressure  of  government  upon  him,  your  minds  are 
to  be  distracted  with  criminating  materials  brought 
from  so  many  quarters,  and  of  an  extent  which 
mocks  all  power  of  discrimination  ?  I  am  con- 
scious that  I  have  not  adverted  to  the  thousandth 
part  of  them  ;  yet  I  am  sinking  under  fatigue  and 
weakness,  I  am  at  this  moment  scarcely  able  to 
stand  up  whilst  I  am  speaking  to  you,  deprived  ;i- 
I  have  been,  for  nights  together,  of  everything 
that  deserves  the  name  of  rest,  repose,  or  comfort. 
I  therefore  hasten,  whilst  yet  I  may  be  able.  t.. 


582     SPEECH  OF  ME.  ERSKINE  ON  THE 

remind  you  once  again  of  the  great  principle  into 
which  all  I  have  been  saying  resolves  itself. 

Gentlemen,  my  whole  argument  then  amounts 
to  no  more  than  this,  that  before  the  crime  of 
compassing^  the  King's  death  can  be  found  by  you, 
the  jury,  whose  province  it  is  to  judge  of  its  exist- 
ence, it  must  be  believed  by  you  to  have  existed 
in  point  of  fact.  Before  you  can  judge  a  fact,  you 
must  believe  it,  not  suspect  it,  or  imagine  it,  or 
fancy  it,  but  believe  it,  and  it  is  impossible  to  im- 
press the  human  mind  with  such  a  reasonable  and 
certain  belief,  as  it  is  necessary  to  be  impressed, 
before  a  Christian  man  can  adjudge  his  neighbor 
to  the  smallest  penalty,  much  less  to  the  pains  of 
death,  without  having  such  evidence  as  a  reason- 
able mind  will  accept  of,  as  the  infallible  test  of 
truth.  And  what  is  that  evidence  ?  Neither  more 
nor  less  than  that  which  the  constitution  has  estab- 
lished in  the  courts  for  the  general  administration 
of  justice ;  namely,  that  the  evidence  convinces  the 
jury,  beyond  all  reasonable  doubt,  that  the  criminal 
intention,  constituting  the  crime,  existed  in  the 
mind  of  the  man  upon  trial,  and  was  the  main- 
spring of  his  conduct.  The  rules  of  evidence,  as 
they  are  settled  by  law,  and  adopted  in  its  general 
administration,  are  not  to  be  over-ruled  or  tamper- 
ed with.  They  are  founded  in  the  charities  of 
religion,  in  the  philosophy  of  nature,  in  the  truths 
of  history,  and  in  the  experience  of  common  life ; 


TRIAL  OF  THOMAS   HARDT. 

and  whoever  ventures  rashly  to  depart  from  them, 
let  him  rememl>er  that  it  will  be  meted  to  him  in 
the  same  measure,  and  that  both  God  and  man 
will  judge  him  accordingly.  These  are  arguments 
addressed  to  your  reasons  and  consciences,  not  to 
be  shaken  in  upright  minds  by  any  precedent,  for 
no  precedents  can  sanctify  injustice;  if  they  could, 
every  human  right  would  long  ago  have  been  ex- 
tinct upon  the  earth.  If  the  state  trials  in  had 
times  are  to  be  searched  for  precedents,  what  mur- 
ders may  you  not  commit;  what  law  of  humanity 
may  you  not  trample  upon;  what  rule  of  justice 
may  you  not  violate;  and  what  maxim  of  wise 
policy  may  you  not  abrogate  and  confound?  If 
precedents  in  bad  times  are  to  be  implicitly  follow- 
ed, why  should  we  have  heard  any  evidence  at  all? 
You  might  have  convicted  without  any  evidence, 
for  many  have  been  so  convicted,  and  in  this  man- 
ner murdered,  even  by  acts  of  Parliament  If  pre- 
cedents in  bad  times  are  to  be  followed,  why 
should  the  Lords  and  Commons  have  investigated 
these  charges,  and  the  Crown  have  put  them  into 
this  course  of  judicial  trial? — since,  without  siu-h  a 
trial,  and  even  after  an  acquittal  upon  one,  tlu-y 
might  have  attainted  all  the  prisoners  by  act  of 
Parliament;  they  did  so  in  the  case  of  Lord  Strat- 
ford. There  are  precedents,  therefore,  for  all  such 
things;  but  such  precedents  as  could  not  for  a 
moment  survive  the  times  of  madness  and  distrac- 


584     SPEECH  OF  ME.  EESKINE  ON  THE 

tion  which  gave  them  birth,  but  which,  as  soon  as 
the  spurs  of  the  occasion  were  blunted,  were 
repealed,  and  execrated  even  by  Parliaments  which 
(little  as  I  may  think  of  the  present)  ought  not  to 
be  compared  with  it;  Parliaments  sitting  in  the 
darkness  of  former  times,  in  the  night  of  freedom, 
before  the  principles  of  government  were  developed 
and  before  the  constitution  became  fixed.  The 
last  of  these  precedents,  and  all  the  proceedings 
upon  it,  were  ordered  to  be  taken  off  the  file  and 
burnt,  to  the  intent  that  the  same  might  no  longer 
be  visible  in  after  ages;  an  order  dictated,  no 
doubt,  by  a  pious  tenderness  for  national  honor, 
and  meant  as  a  charitable  covering  for  the  crimes 
of  our  fathers.  But  it  was  a  sin  against  posterity ; 
it  was  a  treason  against  society,  for,  instead  of 
commanding  them  to  be  burnt,  they  should  rather 
have  directed  them  to  be  blazoned  in  hirge  letters 
upon  the  walls  of  our  courts  of  justice,  that,  like 
the  characters  deciphered  by  the  prophet  of  God, 
to  the  eastern  tyrant,  they  might  enlarge  and 
blacken  in  your  sights,  to  terrify  you  from  acts  of 
injustice. 

In  times,  when  the  whole  habitable  earth  is  in 
a  state  of  change  and  fluctuation ;  when  deserts 
are  starting  up  into  civilized  empires  around  you; 
and  when  men,  no  longer  slaves  to  the  prejudices 
of  particular  countries,  much  less  to  the  abuses  of 
particular  governments,  enlist  themselves,  like  the 


TRIAL  OF  THOMAS  HARDY.        o85 

citizens  of  an  enlightened  world,  into  whatever 
communities  their  civil  liberties  may  be  best  pro- 
tected ;  it  never  can  be  for  the  advantage  of  this 
country  to  prove,  that  the  strict,  unex tended  letter 
of  her  laws,  is  no  security  to  it*  inhabitants.  On 
the  contrary,  when  so  dangerous  a  lure  is  every- 
where holding  out  to  emigration,  it  will  be  found 
to  be  the  wisest  policy  of  Great  Britain  to  set  up 
her  happy  constitution,  the  strict  letter  of  her 
guardian  laws,  and  the  proud  condition  of  equal 
freedom,  which  her  highest  and  her  lowest  subjects 
ought  equally  to  enjoy ;  it  will  be  her  widest 
policy  to  set  up  these  first  of  human  blessings 
against  those  charms  of  change  and  novelty  which 
the  varying  condition  of  the  world  is  hourly  dis- 
playing, and  which  may  deeply  affect  the  imputa- 
tion and  prosperity  of  our  country.  In  times, 
when  the  subordination  to  authority  is  said  to  be 
everywhere  but  too  little  felt,  it  will  be  found  to 
be  the  wisest  policy  of  Great  Britain,  to  instil  into 
the  governed  an  almost  superstitious  reverence  for 
the  strict  security  of  the  laws;  which,  from  their 
equality  of  principle,  beget  no  jealousies  or  dis- 
content; which,  from  their  equal  administration, 
can  seldom  work  injustice;  and  which,  from  the 
reverence  growing  out  of  their  mildness  and  an- 
tiquity, acquire  a  stability  in  the  habits  and 
affections  of  men,  far  beyond  the  force  of  civil 
obligation;  whereas  severe  penalties,  and  arbi- 


586  SPEECH    OF    MR.    ERSKINE    ON    THE 

trary  constructions  of  laws  intended  for  security, 
lay  the  foundations  of  alienation  from  every  human 
government,  and  have  been  the  cause  of  all  the 
calamities  that  have  come,  and  are  coming  upon 
the  earth. 

Gentlemen,  what  we  read  of  in  books  makes  but  a 
faint  impression  upon  us,  compared  to  what  we  see 
passing  under  our  eyes  in  the  living  world.  I 
remember  the  people  of  another  country,  in  like 
manner,  contending  for  a  renovation  of  their  con- 
stitution, sometimes  illegally  and  turbulently,  but 
still  devoted  to  an  honest  end  ;  I  myself  saw  the 
people  of  Brabant  so  contending  for  the  ancient 
constitution  of  the  good  Duke  of  Burgundy ;  how 
was  this  people  dealt  by  ?  All,  who  were  only 
contending  for  their  own  rights  and  privileges, 
were  supposed  to  be,  of  course,  disaffected  to  the 
Emperor ;  they  were  handed  over  to  courts  con- 
stituted for  the  emergency,  as  this  is,  and  the  Em- 
peror marched  his  army  through  the  country  till 
all  was  peace ;  but  such  peace  as  there  is  in  Vesu- 
vius, or  ^Etna,  the  very  moment  before  they  vomit 
forth  their  lava,  and  roll  their  conflagrations  over 
the  devoted  habitations  of  mankind ;  when  the 
French  approached,  the  fatal  effects  were  suddenly 
seen  of  a  government  of  constraint  and  terror ;  the 
well-affected  were  dispirited,  and  the  disaffected 
inflamed  into  fury.  At  that  moment  the  arch- 
duchess fled  from  Brussels,  and  the  Duke  of  Saxe- 


TRIAL  OF  THOMAS  HARDY.        587 

Tetchen  was  sent  express  to  offer  l\\ejoyeu*t  entree 
BO  long  petitioned  fur  in  vain ;  but  the  season  of 
concession  was  past;  the  storm  blew  in  every 
quarter,  and  the  throne  of  Brabant  de|»arted  for- 
ever from  the  house  of  Uurgundy.  Gentlemen,  I 
venture  to  aflirm,  that,  with  other  council*,  this 
fatal  prelude  to  the  last  revolution  in  that  country 
might  have  been  averted;  if  the  Emperor  had  been 
advised  to  make  the  concessions  of  justice  and 
affection  to  his  people,  they  would  have  risen  in  a 
mass  to  maintain  their  prince's  authority  inter- 
woven with  their  own  liberties;  and  the  French, 
the  giants  of  modern  times,  would,  like  the  giants 
of  antiquity,  have  been  trampled  in  the  mire  of 
their  own  ambition.  In  the  same  manner  a  far 
more  splendid  and  important  Crown  passed  away 
from  His  Majesty's  illustrious  brows — the  imp* -rial 
crown  of  America.  The  people  of  that  country, 
too,  for  a  long  season,  contended,  as  subjects,  and 
often  with  irregularity  and  turbulence,  for  what 
they  felt  to  be  their  rights;  and,  O  gentlemen! 
that  the  inspiring  and  immortal  eloquence  of  that 
man,  whose  name  I  have  so  often  mentioned,  had 
then  been  heard  with  effect!  what  was  his  lan- 
guage to  this  country  when  she  sought  to  lay 
burdens  on  America, — not  to  support  the  dignity 
of  the  Crown,  or  for  the  increase  of  national  reve- 
nue, but  to  raise  a  fund  for  the  purpose  of  cor- 
ruption; a  fund  for  maintaining  those  tribes  of 


588     SPEECH  OF  ME.  ERSKINE  ON  THE 

hireling  skip-jacks,  which  Mr.  Tooke  so  well  con- 
trasted with  the  hereditary  nobility  of  England  I 
Though  America  would  not  bear  this  imposition, 
she  would  have  borne  any  useful  or  constitutional 
burden  to  support  the  parent  state.  "  For  that 
service,  for  all  service,"  said  Mr.  Burke,  "whether 
of  revenue,  trade,  or  Empire,  my  trust  is  in  her 
interest  in  the  British  constitution.  My  hold  of 
the  colonies  is  in  the  close  affection  which  grows 
from  common  names,  from  kindred  blood,  from 
similar  privileges,  and  equal  protection.  These 
are  ties  which,  though  light  as  air,  are  as  strong  as 
links  of  iron.  Let  the  colonies  always  keep  the 
idea  of  their  civil  rights  associated  with  your  gov- 
ernments, they  will  cling  and  grapple  to  you,  and 
no  force  under  heaven  will  be  of  power  to  tear 
them  from  their  allegiance.  But  let  it  be  once 
understood,  that  your  government  may  be  one 
thing,  and  their  privileges  another ;  that  these 
two  things  may  exist  without  any  mutual  relation  ; 
the  cement  is  gone ;  the  cohesion  is  loosened  ;  and 
every  thing  hastens  to  decay  and  dissolution.  As 
long  as  you  have  the  wisdom  to  keep  the  Sovereign 
authority  of  this  country  as  the  sanctuary  of  lib- 
erty, the  sacred  temple  consecrated  to  our  common 
faith,  wherever  the  chosen  race  and  sons  of  Eng- 
land worship  freedom,  they  will  turn  their  faces 
toward  you.  The  more  they  multiply,  the  more 
friends  you  will  have ;  the  more  ardently  they  love 


TRIAL  OF  THOMAS  HARDY.  -  ' 

liberty,  the  more  perfect  will  be  their  obedience. 
Slavery  they  can  have  anywhere.  It  is  a  weed  that 
grows  in  every  soil.  They  may  have  it  from  Spain, 
they  may  have  it  from  Prussia,  But  until  you 
become  lost  to  all  feeling  of  your  true  interest  and 
your  natural  dignity,  freedom  they  can  have  from 
none  but  you.  This  is  the  commodity  of  price,  of 
which  you  have  the  monopoly.  This  is  the  true 
act  of  navigation,  which  binds  to  you  the  com- 
merce of  the  colonies,  and  through  them  secures  to 
you  the  wealth  of  the  world.  Is  it  not  the  same 
virtue  which  does  every  thing  for  us  here  in  Eng- 
land? Do  you  imagine  then,  that  it  is  the  land- 
tax  act  which  raises  your  revenue?  that  it  is  the 
annual  vote  in  the  committee  of  supply,  which 
gives  you  your  army  ?  or  that  it  is  the  mutiny  bill 
which  inspires  it  with  bravery  and  discipline? 
No!  surely  no!  It  is  the  love  of  the  people;  it  is 
their  attachment  to  their  government,  from  the 
sense  of  the  deep  stake  they  have  in  such  a  glori- 
ous institution,  which  gives  you  your  army  and 
your  navy,  and  infuses  into  both  that  liberal  obe- 
dience, without  which  your  army  would  be  a  base 
rabble,  and  your  navy  nothing  but  rotten  timl 

Gentlemen,  to  conclude,  my  fervent  wish  is,  that 
we  may  not  conjure  up  a  spirit  to  destroy  ourselves, 
nor  set  the  example  here  of  what  in  another 
country  we 'deplore.  Let  us  cherish  the  old  and 
venerable  laws  of  our  forefathers.  Let  our  judicial 


590     SPEECH  OF  MR.  EESKINE  ON  THE 

administration  be  strict  and  pure  ;  and  let  the  jury 
of  the  land  preserve  the  life  of  a  fellow-subject, 
who  only  asks  it  from  them  upon  the  same  terms 
under  which  they  hold  their  own  lives,  and  all 
that  is  dear  to  them  and  their  posterity  for  ever. 
Let  me  repeat  the  wish  with  which  I  began  my  ad- 
dress to  you,  and  which  proceeds  from  the  very  bot- 
tom of  my  heart ;  may  it  please  God,  who  is  the 
author  of  all  mercies  to  mankind,  whose  provi- 
dence, I  am  persuaded,  guides  and  superintends 
the  transactions  of  the  world,  and  whose  guardian 
spirit  has  forever  hovered  over  this  prosperous 
island,  to  direct  and  fortify  your  judgments.  I 
am  aware  I  have  not  acquitted  myself  to  the 
unfortunate  man,  who  has  put  his  trust  in  me,  in 
the  manner  I  could  have  wished  ;  yet  I  am  unable 
to  proceed  any  further  ;  exhausted  in  spirit  and  in 
strength,  but  confident  in  the  expectation  of  justice. 
There  is  one  thing  more,  however,  that,  if  I  can,  I 
must  state  to  you,  namely,  that  I  will  show,  by  as 
many  witnesses  as  it  may  be  found  necessary  or 
convenient  for  you  to  hear  upon,  the  subject,  that 
the  views  of  the  Societies  were  what  I  have  alleged 
them  to  be ;  that  whatever  irregularities  or  indis- 
cretions they  might  have  committed,  their  purposes 
were  honest;  and  that  Mr.  Hardy's,  above  all 
other  men,  can  be  established  to  have  been  so.  I 
have,  indeed,  an  honorable  gentlemen  *(Mr.  Fran- 
cis) in  my  eye,  at  this  moment,  to  be  called 


TRIAL   OF   THOMAS    HARDY.  591 

hereafter  as  a  witness,  who  being  desirous  in  hi* 
place,  as  a  member  of  Parliament,  to  promote  an 
inquiry  into  the  seditious  practices  complained  of, 
Mr.  Hardy  offered  himself  voluntarily  to  come 
forward,  proffered  a  wight  of  all  the  paper*,  which 
were  afterwards  seized  .in  his  custody,  and  ten- 
dered every  possible  assistance  to  give  satisfaction 
to  the  laws  of  his  country,  if  found  to  be  offended. 
I  will  show  likewise  his  diameter  to  be  religious, 
temperate,  humane,  and  moderate,  and  his  uniform 
conduct  all  that  can  belong  to  a  good  subject,  and 
an  honest  man.  When  you  have  heard  this  evi- 
dence, it  will,  beyond  all  doubt,  confirm  you  in 
coming  to  the  conclusion  which,  at  such  great 
length,  for  which  I  entreat  your  pardon,  I  have 
been  endeavoring  to  support. 


Upon  the  conclusion  of  Mr.  Erskine's  speech,  so  powerfully 
had  it  affected  the  multitude  of  eager  auditor*  that  they  burnt 
into  an  irrepressible  acclamation  which  spread  through  the 
vast  multitude  outeide,  and  was  taken  up  and  repeated  to  a 
great  distance  around.  Thousands  of  jieople  thronged  the 
streets,  all  whose  sympathies  were  in  favor  of  the  primmer. 
So  dense  was  the  crowd  that  it  was  for  some  time  impooiUt 
for  the  judges  to  reach  their  carriages.  Mr.  Krokine  ap- 
peared and  spoke  to  the  multitude,  asking  modi-ration  and 
desiring  them  to  confide  in  the  justice  of  the  country ;  re- 
minding them  that  their  only  security  was  under  the  laws,  and 


592  THE  VERDICT. 

that  any  attempt  to  thwart. or  overawe  their  execution  would 
endanger  the  lives  of  the  accused.  At  his  request  the  vast 
audience  quietly  dispersed,  and  the  streets  were  speedily  re- 
stored to  their  usual  quiet. 

The  trial  continued  to  the  5th  of  November,  the  evidence 
for  the  prisoner  being  ably  summed  up  by  Sir  Vicary  Gibbs. 
to  which  the  Solicitor-General,  afterwards  Lord  Redesdale 
replied.  The  jury  were  charged  by  the  Lord  Chief  Justice 
who  presided  over  the  commission,  and  returned  a  verdict  of 
"  Not  Guilty." 


END  OF    VOL.    II. 


A    000  691  858 


